CENTENNIAL — “Blood is just pouring down on the right side of my face.”
Louis Duran sat at the witness stand last week, recalling the moments after he was shot inside the Century Aurora 16 movie theater.
“I didn’t think I was going to make it. So I reached down to my left pocket, grabbed my phone.”
His voice broke.
“I called the most important person in my life. My mother. And I told her … “
Ten feet away, defense attorney Daniel King rose to his feet.
“Objection,” King said. “Hearsay.”
Judge Carlos Samour Jr. agreed.
“You cannot talk about what was said outside the courtroom,” Samour later cautioned.
For three years, survivors of the Aurora theater shooting have waited for their chance to take the stand and testify about how James Holmes hurt them. But, now that they are there, many are finding themselves blocked from telling their full stories by court rules designed to keep the trial fair and factual.
They are not allowed at this stage to testify about the shooting’s ripples in their lives, such as if they suffered depression or fell into debt. They can’t tell jurors what their doctors said to them after the shooting. Survivors who lost friends that night aren’t even allowed to say their friends were killed in the shooting — only that they haven’t seen their friends alive since.
“I understand both sides of it,” said shooting survivor Marcus Weaver, who testified in the trial’s first week. “But it was kind of shocking that he didn’t want to know our personal feelings.”
The situation shows the difficulty for victims of finding closure through court testimony when that testimony is bound by the same rules that apply to all witnesses in all criminal cases. Witnesses in court must stick to the facts of what they know directly, they can’t speculate, they can’t talk about details that are irrelevant to the charges and they can’t repeat something someone else told them.
But the tension also reveals something much deeper: In the eyes of the law, a criminal trial is not about the victims.
“You think this is your moment in court,” said Mai Fernandez, a former prosecutor who is now the executive director of the National Center for Victims of Crime. “But your moment in court isn’t really yours. It’s the prosecutor’s.”
Victims’ rights advocates have pushed for a greater place for victims in criminal cases, but they have met resistance from groups like the American Civil Liberties Union, which argues that the push undermines basic principles of the American justice system — such as the presumption of innocence and the right to a fair trial. Bending the rules of court to provide greater comfort to victims increases the risk of bias and wrongful convictions, the latter group says.
“A criminal trial is never about seeking justice for the victim,” prominent defense attorney Alan Dershowitz wrote in one commentary on the subject. “If it were, there could be only one verdict: guilty.”
Even Fernandez agrees that a criminal trial is ill-equipped to be a place of therapy for victims, which is why she says prosecutors need to prepare victims for the reality of their testimony.
“If you think you’re going to get a really cathartic statement out of this, you’re probably not,” she said.
The first thing Samour says upon entering court each morning for the theater shooting trial is, “This is the case of the State of Colorado versus James Eagan Holmes.” It’s a throwaway line said only for the trial’s written record, but it underscores the awkward position victims hold in the criminal justice system.
Prosecutors, who are seeking the death penalty in the case, represent the government. Defense attorneys, who have pleaded not guilty by reason of insanity on behalf of Holmes, represent the accused.
The most prominent place where the 12 people killed and 70 wounded in the July 20, 2012, attack appear in court documents is in the charges, where they are listed essentially as part of the facts that prosecutors must prove.
Concerned about the place of victims in the criminal justice system, Colorado voters overwhelmingly passed a limited victim rights act in 1992. The act gives victims of certain crimes the right to be present at key moments — including the trial — and to have some input into prosecutorial decisions like plea deals.
As a result, Samour has tried to carve out a place for victims in the theater shooting trial. He has allowed victims who will testify in the case to watch the entire trial — even before their testimony — something that other witnesses are not allowed to do. At the request of the families of slain victims, he has changed how the court displays graphic images, so those families can watch the trial from a live video feed without seeing the photos.
Meanwhile, victim advocates from the prosecutor’s office sit beside survivors and victims’ families during the trial. One prosecutor who specializes in victims’ rights issues coordinates with the families.
But, when it comes to testimony, Samour has limited how much victims can say.
One survivor, Heather Snyder, was able to show jurors her right hand, where a bullet wound caused her index and middle finger to be amputated. She was able to tell jurors that she now drops things frequently because of the injury. But she was not allowed to tell jurors why that matters: She’s a bartender.
When another survivor, Kelly Bowen, said the gunman appeared determined and to be searching for victims inside the theater, Samour ordered the answers stricken because he agreed they were speculative.
“You should treat these answers as if you never heard them,” Samour told the jury.
On the stand, some survivors seem not to mind the interruptions, while others have scowled or sighed heavily when their stories were stopped by a defense objection.
Weaver said he spent nearly three years imagining what it would be like to testify in the case. On the stand, he told of the shooting that wounded him and killed his friend, Rebecca Wingo, but Samour stopped him from telling jurors about the depression and weight gain he suffered after the shooting.
When it was all over, Weaver said he was disappointed he didn’t get to say more but that he also realized he was just one witness of many in the case.
“I wasn’t hurt or rejected by it,” he said. “There’s a place and a time for that. It’s just not in this criminal trial.”
John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/johningold
