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Judge, defense attorneys increasingly at odds in theater shooting case

By John Ingold
The Denver Post

POSTED:   06/02/2014 12:01:00 AM MDT

Last month, when the judge overseeing the Aurora movie theater shooting case issued a string of orders rebuffing defense criticism of his work, the rulings landed in prosecutors' inboxes and the public case file and on the court's website.

One place they didn't end up: with the defense.

When defense attorneys complained in a new motion that they only learned about the orders through the media, Judge Carlos Samour responded by correcting their contention that he didn't send the orders to them.

"The Court does not know why the defense's e-mail system did not accept the Court's e-mails," Samour wrote.

The exchange neatly summarized the tension between the judge and attorneys for James Holmes that has developed in court filings for what may be the most high-profile state murder trial in Colorado history.

With their client facing the death penalty if convicted of murdering 12 people and trying to kill many more inside the Century Aurora 16 movie theater in July 2012, defense attorneys have filed nearly 200 motions to argue issues around evidence, capital punishment and Holmes' insanity plea.

Determined to keep the case moving forward, Samour has increasingly denied the motions without holding hearings.

Stakes are high Legal experts say the tension isn't a sign of anyone doing anything wrong. Instead, it's the natural outcome of a case where the stakes are high and everyone is aware that the trial, now almost two years in the making, is just a first step.

"When there is a death penalty case, the sole goal of the defense attorneys is to save their client's life," said Karen Steinhauser, a defense attorney who tried a death penalty case while working as a Denver prosecutor. "That is going to mean doing things and saying things that are not comfortable."

Defense attorneys have now filed 191 motions in the case — nearly five times as many as prosecutors — according to a Denver Post analysis of the case file. About half of those motions have been rejected in their entirety, and the number of denied defense motions — 94 — is nearly 25 times the scant four motions that prosecutors have seen rejected. Twenty-eight more of the defense motions have been granted in part but also denied in part.

David Kaplan, who served six years as the head of the state public defender's office, said it is typical in most cases for defense attorneys to file more motions than prosecutors. But that is especially true for death penalty cases, when attorneys are ethically obligated to try almost anything.

A study last year published in the University of Denver Criminal Law Review found that death penalty cases in Colorado usually involve more than 85 days of in-court debate on pretrial matters, including motions. Non-death penalty cases where the defendant still faces life without parole spend on average only 14 days, according to the study.

"The responsibility on a defense team is immense in death litigation," Kaplan said. "When the government is trying to kill your client, I can't think of a motion that you wouldn't want to present."

But it's in that deluge of defense motions that Samour — who was a Denver prosecutor before becoming a judge in Arapahoe County — seems most peeved.

Read more: Judge, defense attorneys increasingly at odds in theater shooting case - The Denver Post 

Background Photo Credit: Kasia Broussalian © 2015