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| James Holmes |
Lawyers for Aurora movie theater shooting defendant James Holmes want the judge in the case to declare Colorado's death-penalty laws unconstitutional.
In multiple motions filed Friday and made public Tuesday, lawyers for Holmes say the state's death-penalty laws are unconstitutionally arbitrary, that the jury-selection process unfairly skews the jury pool, and that the punishment is sought and used so infrequently in Colorado as to make it cruel and unusual.
"Imposition of the death penalty is rare, unusual, freakish, and inconsistently applied throughout the State of Colorado," the defense lawyers write in 1 motion.
Prosecutors are seeking the death penalty against Holmes, whose lawyers have admitted that he killed 12 people and wounded dozens more in an attack on the Century Aurora 16 movie theater last summer. Holmes has pleaded not guilty by reason of insanity.
A number of the motions are based on the findings of a study by 2 University of Denver law professors - a study commissioned by the defense team in another murder case - that found that almost all murder cases in Colorado are eligible for the death penalty.
According to the study, 92 % of the 544 1st-degree murder cases in Colorado between 1999 and 2010 were eligible for the death penalty. But prosecutors pursued the death penalty at trial in only 5 of those cases, according to the study. Based on those findings, Holmes' lawyers argue in the motions that Colorado's laws don't limit the use of the death penalty enough to comply with U.S. Supreme Court rulings. They also argue that, when the death penalty is used, it is applied inconsistently. The only district attorney's office to take death penalty cases to trial in the past decade is the 18th Judicial District attorney's office, the same one prosecuting Holmes.
And the defense attorneys say the process of selecting a jury in a death-penalty case - known as "death qualifying" the jury - results in a jury biased against the defendant. Any juror selected for a death-penalty case has to be willing potentially to impose capital punishment, meaning people opposed to the death penalty are disqualified from service. Citing "social science research," Holmes' attorneys say that selection process results in jurors that "are both partial to the prosecution and prone to convict."
Finally, Holmes' attorneys argue evolving attitudes toward the death penalty should render the punishment inapplicable in the case.
"The death penalty is in steep and consistent decline in Colorado," the attorneys wrote in one motion. "Thus, even if this Court restricts its view to the Colorado Constitution, it should strike the death penalty as inconsistent with the evolving standards of decency that mark the progress of a maturing society."
Prosecutors are due to respond in court filings to the motions later this month, and a gag order in the case prevents them from commenting publicly about the case. In past statements, 18th Judicial District Attorney George Brauchler has said the death penalty is used fairly and cautiously in Colorado.
"Our elected prosecutors prudently exercise discretion as to which few murder cases truly warrant the pursuit of the death penalty," Brauchler wrote earlier this year in an editorial in The Denver Post. "Which killer currently facing death in Colorado deserves a lesser sentence?"
The motions were filed Friday to meet a deadline for raising death penalty-related issues in the case. They are scheduled to be debated in December.
Source: The Burlington Record, September 30, 2013