CENTENNIAL — Juror No. 86 looked like a schoolkid, sitting pensively in the jury box and gazing up to where the judge presided above her.
On her juror questionnaire for the Aurora movie theater shooting case, she had noted that her oldest daughter had planned to go to a movie on the same night as the shooting, then canceled. Moments earlier, No. 86 had told the judge it would be hard to listen to evidence in the case and not wonder what could have been if her child had been in the theater that night.
Now, the judge had come to the crux of the jury selection process, and he looked at No. 86.
“If selected for this case, can you be a fair and impartial juror?” he asked.
She paused.
“I would like to believe that I could be objective,” she responded. “I do believe I can do that.”
She passed.
Through three days of individual questioning of potential jurors, the judge and attorneys in the Aurora theater shooting trial have approved 16 jurors for the final stage of jury selection. That is exactly half of the jurors questioned, and at a rate far better than anyone predicted.
One reason for the success has been the number of jurors who said — in response to questions by the judge or the attorneys — that they can set aside their personal beliefs and preconceptions to decide the case impartially. In legal terms, such questioning is known as “rehabilitating” jurors. Essentially, it’s taking somewhat biased jurors and persuading them to act like unbiased ones.
“It’s not unusual,” said Denver defense attorney and legal analyst Dan Recht. “Frankly, it’s important.”
But the process is also controversial. While some research suggests that rehabilitation can change the way jurors view cases, several states have limited its use. Skeptics say rehabilitation potentially allows jurors to slip into cases that they can’t decide fairly.
When sitting in a courtroom and asked by a judge or a lawyer whether they can be impartial, most people will answer yes, said Jessica Brylo, a Denver-based trial consultant. They either want to be seen as fair — “I would do my 100 percent best to be open-minded about it because that’s the kind of person I am,” juror No. 86 said during questioning — or they are afraid of giving a “wrong” answer. But, once seated for a jury, it is hard for jurors to keep their biases from seeping back in.
“To say you can set your beliefs aside is psychologically impossible,” Brylo wrote in an e-mail. “Research has shown time and again that jurors are not blank slates but rather come to the table with a set of beliefs and biases.”
In the theater shooting case, Judge Carlos Samour repeatedly has told jurors, “There are no right or wrong answers, only honest answers.” And jurors have been dismissed after saying they could not set aside strongly held beliefs.
But both sides also have objected to jurors whom Samour has declined to dismiss.
On Thursday, defense attorney Kristen Nelson said the judge’s questioning, in particular, was making jurors less likely to be honest about their biases.
“Right out of the box, they feel they need to tell the court what the court wants to hear,” she said.
Samour responded firmly that he was just doing his job, trying to weed out biased jurors and to instruct others how to decide the case impartially.
Jury selection has been especially complicated because prosecutors are seeking the death penalty against James Holmes, a potential punishment that jurors would have to render. Jurors selected for the trial also must be open to sentencing Holmes to life in prison or to finding him not guilty by reason of insanity on charges that he murdered 12 people and tried to kill 70 others.
“Generally,” Samour said, “we don’t have juries do sentencing. We have judges do sentencing. That’s what makes this difficult. That’s why we have to educate them about how to do sentencing.”
In the theater shooting case, rehabilitation of jurors has worked both ways. On Thursday, a juror who broke down in tears when asked whether she could give a life sentence in the case, knowing that one of the victims was a child, was retained when she said she could be fair. Later in the day, a juror who wrote on her questionnaire that she believes the death penalty is wrong also was retained after saying she might be able to impose a death sentence.
“I think, in the end, she would follow the law and impose the appropriate sentence,” Samour said of that juror.
Attorneys on both sides still have a chance to remove jurors from the jury pool. At group questioning — the final stage of the process — they are each allowed to strike 22 jurors without giving a reason.
After that, Recht said, both sides will have to hope that the remaining jurors meant what they said.
“That’s the kind of thing that keeps a defense attorney up at night,” he said.
John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/johningold
