James Holmes prosecutor talks about the one holdout juror who spared the killer’s life

Arapahoe County Dist. Atty. George H. Brauchler spent the last three months in the courthouse’s Division 201, trying to persuade a jury that Aurora, Colo., theater gunman James E. Holmes should be put to death. After hearing from more than 300 witnesses and seeing nearly 3,000 pieces of evidence, one juror voted against execution, and Holmes’ life was spared. Formal sentencing is scheduled to begin Monday in Centennial, Colo. As many as 200 victims will read statements.

What was your reaction to the verdict?

I was surprised, no doubt about it. But as obviously as I thought it was a case that cried out for the death penalty, I never went into it cocky, that it was a foregone conclusion. The fact that we came so close made it more disappointing. When the judge says it’s a profoundly reasoned moral judgment and says it 10 times, you always know that any death penalty case could come out this way.

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Have you spoken with the jurors?

They said they were shocked and surprised that this juror held the view she held and took the position she took.

As much as I disagree that life is justice for this guy, I am a defender for this system. I think it should be incredibly difficult for the government to take the life of a citizen. I am going to believe that she did exactly what the judge instructed her to do and voted as a matter of conscience. I have no information to tell me otherwise.

Juror 17 is the only one who has spoken publicly. She said there were one holdout and two wobblers. Is her analysis correct?

Wobbler is even too strong of a term. They had gone around the room at some point and said, “OK, how strong are you on your position?” They had gotten 10 [on a scale of 1 to 10 to gauge how strong the positions were] from everybody and eight on these two.

So what happened with the holdout, and when did she break the news to the jury?

This juror said, “I’m a 10, but I’m a 10 for life.” It was an hour to an hour and a half before the judge got the completed verdict forms. They really felt comfortable with the idea that they were going to get death until this person revealed her position.

Do you know what affected her most?

Mental health of course was an issue in the case. The juror who was a holdout, there was no indication to us that this juror even engaged in lengthy description of, “This is how I felt.” The deduction is that it had to be mental health.

You said that at some point the jurors voted among themselves about whether they could sentence Holmes to death if mental health was not an issue. Is that correct?

I can’t tell you if it was a formal vote or if this was a discussion topic. It was something like, “If mental health were not an issue, would you all vote for death,” words to that effect. Everyone said yes.

Gov. John Hickenlooper has said he would not allow someone to be executed while he is in office. Governors in Washington, Oregon and Pennsylvania have taken similar actions. Did that affect the jury?

We’re talking about one juror. Without talking to that one juror, it is impossible to know. Some of the victims who were onboard with the death penalty said that it had impacted them. They said, “I was willing to sign up my family for a death penalty trial, but now, if some governor 20 years from now can pull the rug out from under a jury and sentence, I would rather have closure right now.” It was painful.

Many have said that, if Holmes does not get the death penalty after killing 12 and wounding 70, then the death penalty is dead in Colorado. Do you agree?

No. It was one juror. If it came back 12 for life, I would have said, “Good grief.” If this juror also came back with death, no one would have said: “This is dispositive. The death penalty is here to stay, and mental health is never going to be an issue.” To suggest that because that juror had reservations for whatever personal reasons, I don’t think you can draw any policy implications from that.

This year alone, the death penalty has been thrown out in Connecticut and Nebraska. Defendants in high-profile death penalty cases in Washington state this summer got life in prison without parole. Do you see a change in the air?

I think there’s always been that group that feels like we should find a way to minimize the consequences for the most terrible crimes. Maybe it picked up traction because of the Nebraska Legislature. But people here do not want to create a ceiling of maximum possible punishment for people who commit the worst of the worst crimes.

So you think the death penalty will stay on the books in Colorado?

In one way or another, I do.

Dexter Lewis was just convicted of murder in Denver for killing five people during a robbery, and the jury is in the sentencing phase considering execution. The judge in that case warned jurors that the two cases are not alike. Do you think the Holmes verdict will impact the Lewis case?

I hope it doesn’t. I want the jurors to follow the instructions they were given. One holdout juror should not affect them. Each of these cases must be thought about individually. They are both evil acts.

Holmes was convicted of murdering 12 people and wounding 70. But I have heard you say that there are 1,200 victims in the case. How do you figure?

The way victims are defined under our laws extends beyond the people injured. It goes to immediate family members. With just the 12 deceased, we were dealing with a group of more than 100. Everyone in Theater 9 or 8 could have been a victim under an attempted murder statute. We didn’t charge that way because of logistical reasons. It doesn’t deny that those people are victims.

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