The defendant has a constitutional right to a fair trial. The defendant doesn't have a constitutional right to a sanitized trial. —Judge
CENTENNIAL, Colo. — Defense attorneys in the Colorado theater shooting trial are trying hard to keep jurors from knowing the worst details of the massacre, fighting to prevent survivors from revealing how badly they were injured and objecting to photos showing even small amounts of blood.
Their persistent efforts frustrated the judge who this week told them, "The defendant has a constitutional right to a fair trial. The defendant doesn't have a constitutional right to a sanitized trial."
James Holmes' defense attorneys want to keep the trial focused on whether he was legally insane, not the nightmare of the attack, concerned that the gory details could sway jurors.
"This is a particularly difficult case for that sort of argument," said Denver defense attorney Scott Robinson, who is not involved in the Holmes case. "It's not humanly possible to separate gruesomeness from the theater shooting trial. With so many shots fired, so many people shot, so many lurid memories recounted by so many witnesses, the jury will be revolted. They've already hated what they've seen, and it's not even close to over."
But Holmes' lawyers are trying.
In the three weeks since the trial opened, dozens of witnesses and police officers have offered harrowing details of their experiences in the theater, where Holmes killed 12 people and injured 70 others during a packed midnight premiere of a Batman movie.
Defense attorneys have argued that survivors shouldn't be allowed to share the long-term impacts of their injuries, even suggesting that a pregnant woman who was paralyzed in the gunfire be barred from talking about her miscarriage.
They opened the third week of the trial by arguing that the testimony of a fingerprint examiner who helped identify the 12 bodies should be excluded because it would be needlessly upsetting to jurors. They were unsuccessful.
"The upsetting thing is that the defendant went into a theater of innocent people and shot," Prosecutor Rich Orman told the judge. "The upsetting thing is the defendant shot a little girl."
Defense attorneys were also unsuccessful later in the week, when they tried to keep jurors from seeing glimpses of blood in the theater as another crime scene investigator showed hundreds of photos of bullet holes that scarred upholstered seats and walls.
"The blood is incidental for what the picture is being introduced for," the judge said, adding that the jury expects to see blood because it was a "bloody scene."
Robinson said the defense objections are strategic but also a way of building grounds for an appeal, should jurors find Holmes guilty and sentence him to death. Their frequent objections also make it hard for prosecutors to tell a continuous story.
Prosecutors, meanwhile, are doing just the opposite, trying to ensure witnesses' emotional recollections are played throughout the trial in dramatic ways, so jurors don't forget them. As testimony closed for the week, prosecutors called Heather Snyder, a bartender who testified about losing the two fingers on her right hand in the shooting. After showing pictures of her hand wrapped in bloody gauze, Prosecutor Lisa Teesch-Maguire asked Snyder to "raise your hand as high as you can" for jurors to see.
District Attorney George Brauchler later asked another witness to hold a pointer like an assault rifle to show the way he saw Holmes spraying gunfire into the crowd.
Jurors will see still more crime scene photos when the trial begins again Monday.