James Holmes, Aurora Movie Theater Shooter, Will Soon Know Whether He Faces The Death Penalty

James Holmes, Aurora theater shooting suspect, sits in the courtroom during his arraignment in Centennial, Colo., on Tuesday,
James Holmes, Aurora theater shooting suspect, sits in the courtroom during his arraignment in Centennial, Colo., on Tuesday, March 12, 2013. Judge William Blair Sylvester entered a not guilty plea on behalf of James Holmes on Tuesday after the former graduate student's defense team said he was not ready to enter one. (AP Photo/Denver Post, RJ Sangosti, Pool)

In a state where capital punishment is legal but seldom used, prosecutors in Colorado considering a death penalty case against James Holmes are weighing more than one person’s life.

“These trials can be something that the victims and families want to see happen, for some sort of closure, even though there is no closure in a case like this,” legal analyst Anne Bremner told The Huffington Post.

On Monday, prosecutors will announce if they intend to demand the death penalty for Holmes, the shooter behind the massacre last summer at an Aurora, Colo., movie theater that left 12 people dead and 58 others hurt. The prosecution could accept a tempting plea deal and swiftly lock up Holmes forever, or move one step closer to a lengthy trial that could be therapeutic for a community nursing wounds from the horrific shooting.

Holmes faces 166 counts of murder and attempted murder, among other charges, for the July 20 shooting at the opening of "Batman: The Dark Knight Rises."

“These cases can go on for years and years, it's very hard for families to go through the trial, and to go through the appeals,” Bremner said. “All of those considerations are something to look at.”

Last week, the prosecution rejected a proposal that would have sent Holmes to prison for life without parole. Court documents cited the failure of the defense to supply prosecutors with psychiatric test results necessary to reach an agreement. The prosecution suggested the plea deal was "extremely unlikely.”

James Tierney, director of the National State Attorneys General Program at Columbia Law School, says that, in a state where it is legal, it is a prosecutor’s responsibility to pursue the death penalty if he believes the case calls for it, and spending the time and money without winning an execution would hardly signal complete failure.

A prosecutor might say that such a case is “in the interest of justice,” Tierney, a former Maine attorney general, told HuffPost. “Let's say he doesn't get the death penalty. Does that also mean that a trial was a waste of time? I don't think so. It's important for the community to understand who committed that crime and what the circumstances were.

“The victims, the community, and in this case people across the country and around the world will have the opportunity to see that the people who died were real people. [We will] get to see their faces, their families, their photographs.”

Or perhaps not taking the plea deal is a play to force the hand of the defense, Bremner said. The prosecution has made it clear that it rejected the agreement in part because it did not have those psychiatric test results, which the legal team has described as integral to the case.

“Usually prosecutors are pretty well informed before they go forward on a death penalty,” Bremner said. They could “force the defense to give them the test results, before taking the plea.”

Should the case go to trial, the hurdles facing the prosecution’s potential pursuit of the death penalty would be significant. Even if Holmes is convicted and sentenced to die, history shows he could could sit on Colorado’s death row for years. The state has only executed one person since capital punishment was reinstated in 1976, and currently has only three individuals awaiting execution.

Additionally, to reach the death penalty, prosecutors would have to prove that Holmes is not insane. Unlike most states, Colorado legislation places the burden of proof on the prosecution, rather than defense.

Obstacles aside, the magnitude of the charges Holmes faces could make it the rare case in Colorado that ends in execution.

“Trials have a way of bringing out more information,” Tierney says. “That's why we have trials.”



The Aurora Theater Shooting Victims