Peter Blake

The wheels of justice grind more slowly than ever

It didn’t rank up there with the prospect of a default by the Treasury, but the local news item was depressing enough: Arapahoe District Judge Carlos Samour warned that the trial of James Holmes, the Aurora theater shooter, could last up to eight months.

He said it could take nearly three months just to pick a jury. The county’s press-gangs will draft 6,000 hapless souls into a labor pool from which the court will pick 12 jurors and 12 alternates.

Then it might take up to five more months for the trial itself.

icon_op_edThe trial isn’t exactly a whodunnit. We know whodunnit. Even the defense attorneys admit Holmes killed 12 people and wounded scores more in July 2012. The only issue for the jury is whether he’s “not guilty by reason of insanity,” as he pleaded. Or, as the defense attorneys put it, Holmes was “in the throes of a psychotic episode” when he opened fire.

If the trial does drag on for many months, it will be largely the judge’s own fault. Good jurists run a tight ship and don’t put up with time-wasting attorneys.

Of course Samour may be setting up a straw schedule in order to look good if the trial moves along faster than he warned.

No matter how strict Samour is, justice won’t be sped along as it was in days gone by. John Gilbert Graham planted a bomb in his mother’s suitcase at Denver’s Stapleton Airport just before she boarded a United Airlines DC-6 for Portland, Ore., on Nov. 1, 1955. Then he bought a $38,000 life insurance policy on her from one of those machines that dotted airports in those days.

The plane blew up over Longmont shortly after takeoff, killing all 44 aboard, and it didn’t take long for the FBI to track Graham down. He was convicted of murder in May 1956 and, appeals exhausted, was executed in the gas chamber in January 1957. That’s less than 15 months from crime to punishment. These days, the tortuous appeals process authorized by the Supreme Court means convicted murderers with a decade on death row are still in the early innings.

Graham’s trial, by the way, was the first one ever televised in the U.S. Holmes’ trial will not be televised. The public may have a right to see and hear, but TV tends to encourage two of the legal profession’s biggest vices: Preening in front of a national audience and running up billable hours in the courtroom.

Jury selection will take a long time because each juror must be “death qualified” — willing to impose the death penalty if the aggravating factors justify it. At the same time, defense attorneys want to weed out those they think have already decided the defendant deserves to be executed.

One veteran court reporter noted that potential jurors “always lie,” especially in high-publicity cases. “Some lie to get ON the jury because they think they can sell their stories to TV shows and get rich. Some lie to get ON the jury because they want to impose the death penalty…. But most lie to get OFF the jury.”

And no wonder, if they think the trial will take eight months.

But jury selection needn’t take the three months it took in the O.J. Simpson murder case in 1995. Two years later, when Timothy McVeigh was on trial in Denver for killing 168 people with a bomb in Oklahoma City, it took just 17 days and 99 candidates to pick a jury. When accomplice Terry Nichols went on trial later, it took 22 1/2 days and 124 candidates to seat the jury. Both trials were run by Denver U.S. District Judge Richard Matsch, from whom Samour could take lessons in trial management.

Those were more difficult cases, as they turned on circumstantial evidence. McVeigh was executed; Nichols got life.

In the Holmes case, the defense may stipulate to some facts, shortening the time of the trial itself. But the time saved will be lost when jurors are subjected to hours of lengthy testimony by “expert” witnesses, called by both sides, who will give their opinions on the mental state of the accused.

Colorado taxpayers, you will not be surprised to learn, will pay for everything in the Holmes trial: The prosecution, the defense, the “expert” witnesses (who don’t come cheap), even the extensive security that has been present at every hearing so far — snipers on the roof, bomb-sniffing dogs, etc.

Former prosecutor Craig Silverman, who helped win a capital murder case in the 1980s (the defendant died of hepatitis before he could be executed), points out that the defense is motivated to drag out every possible aspect of jury selection and the trial itself, thus generating more issues to bring up on appeal. “The longer the trial, the longer James Holmes stays alive,” he noted.

Sam Kamin, a University of Denver law professor and an opponent of the death penalty, pointed out that a defense motion to move the trial was refused. Thus there will be more people in the jury pool who may have known some of those killed or wounded by Holmes, and be disqualified.

The expense of capital trials is why you don’t see more of them in Colorado, Kamin said. “It takes time and it takes money” to pursue the death penalty, and smaller jurisdictions can’t afford that.

Should the death penalty be abolished? Most voters don’t think so. They dismiss the arguments that one (or more) death doesn’t justify a compensatory killing. And if some studies show that the death penalty doesn’t serve as a deterrent to others, it certainly deters the killer from killing again while in prison.

If the death penalty goes away, then, it will probably be because of the expense. Apparently the appeals cost more than room and board in prison.

In most recent mass murders, the shooter ends up either committing suicide or suicide-by-cop, thus sparing all concerned a trial. Too bad the circumstances at the theater didn’t give the Aurora cops that opportunity.

Longtime Rocky Mountain News political columnist Peter Blake now writes Thursdays for CompleteColorado.com. Contact him at pblake0705@comcast.net You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and www.CompleteColorado.com

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