CENTENNIAL — The day before defense attorneys call their first witness in the Aurora theater shooting trial, the judge Wednesday addressed the gunman directly for the first time in nine weeks.
“If you want to testify, no one can prevent you from doing so,” Judge Carlos Samour Jr. said.
Jurors, however, already know the sound of James Holmes’ voice.
For more than six days, they saw more than 22 hours of video recordings of him talking with a psychiatrist. They watched as his folded hands lay still in his lap and listened as he described aiming his rifle at people trying to run away.
Defense attorneys — who fought to prevent the interview from being recorded and to keep the recording from being played during trial — say playing the video was nothing short of forcing Holmes to take the stand and incriminate himself. They are so concerned about the impact Holmes’ statements will have on the jury that they asked for a mistrial.
Colorado has never before addressed the question of how statements a defendant makes to a psychiatrist can be used in a death penalty case. But as playing video of psychiatric evaluations becomes more common in sanity cases, the safeguard designed to protect defendants’ rights becomes less realistic, experts say.
Holmes’ attorneys will begin presenting their case to the jury Thursday. They’ve argued for almost a year that recording and playing video of Holmes’ evaluation is a violation of his Fifth Amendment rights against self-incrimination.
If convicted, Holmes could face the death penalty.
“Very important issue”
Samour has denied multiple requests to prevent Dr. William Reid from recording his interview with Holmes last summer and to stop prosecutors from playing all of it for the jury.
On June 2, the jury saw video of Holmes describing what he saw inside the theater, how he struggled to reload his weapon and his description of the “terror” people inside the Century Aurora 16 theater were feeling.
The next day, defense attorney Kristen Nelson argued the statements revealed nothing about Holmes’ mental state and instead unfairly prejudiced the jury against him.
“This is a very, very important issue,” Nelson argued. “It’s probably the most important legal issue in this case.”
Samour denied her request for a mistrial.
Holmes has pleaded not guilty by reason of insanity to the attack that killed 12 people and wounded 70 others on July 20, 2012. In doing so, he agreed to undergo an evaluation by a court-appointed psychiatrist.
Two psychiatrists were appointed by the judge. Both found him mentally ill but legally sane.
Only one of the doctors recorded his time with Holmes.
Holding up to scrutiny
In sanity cases, statements defendants make to psychiatrists are not private. Until recently, those statements and the defendant’s demeanor were relayed to jurors through the doctor who completed the evaluation.
Now, it is not uncommon for a jury to hear from the doctor and watch the video.
“At the end of the day, there is simply no better way to preserve the integrity of the forensic psychiatric evaluation,” said Steven Pitt, a nationally recognized forensic psychiatrist. “Video recordings of the evaluation leave no doubt as to who said what. It allows for complete transparency.”
A 1991 task force with the Journal of the American Academy of Psychiatry and the Law found there was nothing ethically wrong with video-recording psychiatric evaluations in criminal cases. The task force did not go so far as to recommend it be standard practice.
Pitt has either audio- or video-recorded every evaluation he has done. Recording the evaluation holds both the examiner and the defendant up to scrutiny and allows jurors, judges and attorneys to see exactly what happened.
“Powerful evidence”
In addition to hearing the defendant’s statements, jurors can watch facial expression and demeanor — all things Pitt considers when determining whether someone was legally sane.
“That is pretty powerful evidence,” said Samuel Pillsbury, a professor at Loyola Law School in Los Angeles.
Jurors aren’t trained mental health professionals, so they often try to look for outward clues about mental health, Pillsbury said.
To prosecutors and lay members of the public, a defendant’s ability to speak clearly, manage his life and calmly answer questions all seem like indications of sanity.
To defense attorneys and many mental health experts, those traits are superficial and don’t speak to the deeper mental condition, Pillsbury said.
“People feel pretty comfortable assessing what they see and hear for themselves, and they give it greater weight than what is reported through a third party,” said Karen Tracey, chair of the Department of Communications at the University of Colorado.
Protecting a defendant’s rights
Jurors increasingly expect videos, PowerPoint presentations and color photographs during trials, Tracey said. But as jurors are shown information in different ways, it also can become difficult for them to follow the law on what they can consider during deliberations.
Throughout the trial, Samour has repeatedly told jurors they are only allowed to consider Holmes’ statements and other evidence for making a decision about his sanity, not his guilt. That instruction is intended to protect jurors from becoming unfairly biased against Holmes.
But recent research has shown that instructions not to consider something can actually draw more attention to it and cause jurors to give greater weight to what they were supposed to put aside, Tracey said.
“We lose track of where we got information pretty quickly,” she said. “It’s really hard to say what is affecting my judgment.”
David Beller, a Denver defense attorney not associated with the case, said there are times when defense attorneys have to ask the judge for a limiting instruction — such as the one Samour has given to jurors about the videos. But whenever possible, defense attorneys will object to instructions.
“To believe that jurors can compartmentalize that information is naive of the legislators and the courts,” Beller said.
Holmes’ attorneys have argued repeatedly that a limiting instruction is not enough to protect his rights.
On Wednesday, without the jury present, Samour advised Holmes of his right to testify. Nine weeks after opening statements, Holmes said his first word in open court.
“Mr. Holmes,” Samour said, “do you understand the advisement I just gave you?”
“Yes,” Holmes said.
The judge then advised him that he also has a right not to take the stand.
Jordan Steffen: 303-954-1794 or twitter.com/jsteffendp
Staff reporter John Ingold contributed to this report.
