Accused Mass Murderer’s Attorneys Can’t|Videotape Jury Selection, Judge Says

DENVER (CN) - The judge in accused mass murderer James Holmes' trial denied his attorneys' request to videotape jury selection and rebuffed their claim that the Arapahoe County Sheriff's Office is recording proceedings.

Arapahoe County Judge Carlos Samour issued three orders Tuesday in the case of the man accused of murdering 12 and wounding dozens at a midnight premier of a Batman movie in July 2012. One order included denial of a defense motion to videotape record jury selection.

"In Motion D-151, the defendant seeks, 'an order allowing him to conduct digital video recordings of jury selection.' The prosecution opposes the motion. For the reason articulated in this Order, the motion is denied without a hearing," the judge wrote. (Internal citations omitted.)

"There is no authority in Colorado or elsewhere that requires trial courts to video record the jury selection process."

Samour said that Holmes failed to show how a video recording would be more beneficial than standard voice recordings and written records.

"The defendant argues, however, that 'there is an enhanced due process right, and a need for a heightened level of reliability of all phases of the trial process' in capital cases," Samour wrote. "The Court previously considered and rejected this contention in Order D-36. The Court stands by that Order."

Samour continued: "The defendant avers that he must be afforded an opportunity 'to make a complete and accurate record on a juror's demeanor to assist the appellate court,' especially since 'a trial judge's factual determination of the nature and extent of a prospective juror's bias is presumed to be correct by an appellate court.' The defendant is correct. However, the Court disagrees that he must be allowed to video record voir dire to make a complete and accurate record about prospective jurors questioned in the courtroom. The defendant will have the opportunity to make a verbal record, which is the method of record preservation employed in Arapahoe County and throughout Colorado in criminal cases, including death penalty cases. Additionally, consistent with the practice in this and all other Colorado jurisdictions, voir dire proceedings will be recorded stenographically. The defendant fails to demonstrate how he will be prejudiced if the Court follows these standard practices and procedures." (Internal citation omitted.)

Holmes' attorneys made a "prediction that video recording 'will virtually eliminate any potential for disagreement between the parties about interpretations of a juror's demeanor.'" But Samour said it is unlikely that two sides who are supposed to oppose each other will agree on something such as a juror's potential bias. He also said that videotaping jury selection could intimidate jurors.

"The jury selection in this high profile case is likely to be an unnerving experience for some prospective jurors; the Court declines to make it unnecessarily stressful by forcing them to face a camera as they are questioned by strangers, in public, about difficult and sometimes personal subjects," the order states.

In the final pages of the 8-page document, Samour commented on defense allegations that law enforcement was somehow recording all proceedings.

"Finally, the Court would be remiss if it did not address the defendant's allegation that the Arapahoe County Sheriff's Office 'found a way to surreptitiously record the proceedings in this case in a manner such that even the defense was unaware that they were being recorded.' The defendant goes too far. The Sheriff did nothing surreptitious; the surveillance camera in division 201 is conspicuous. Further, the defendant's assumption that the proceedings in this case have been recorded is incorrect. The surveillance camera in division 201 lacks the capability to record." (Citation omittted.)

The other two orders published Tuesday deal with the defense's appeal of a ruling ordering Holmes to undergo a second psychiatric evaluation and a denial that Colorado's death penalty is unconstitutional.

Prosecutors last year asked for a second evaluation, claiming the first evaluation was conducted by a biased psychiatrist. Samour granted a stay on the second psychiatric evaluation, stating that the defense indicated it wanted to appeal the motion for an evaluation to the Colorado Supreme Court. The defense will file a petition for appeal in the next 30 days. Samour also canceled court hearings scheduled for early May to accommodate the appeal.

Defense attorneys also argued that the process for selecting jurors in a death penalty case caused an inherently biased jury against the defendant and that jurors would not be likely to follow the court's instructions while deciding punishment. Samour denied the arguments, finding the motions lacked merit and had been rejected previously in other cases.

Holmes is accused of murdering 12 people and injuring 70 more inside a theater during a midnight showing of the movie, "Batman: The Dark Knight Rises" in 2012. He is charged with 166 criminal counts, including murder, and has pleaded not guilty to all of them by reason of insanity.

Prosecutors have indicated they will seek the death penalty.

The trial is set for Oct. 14.

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