Attorneys for Movie Massacre Suspect|Challenge Colorado’s Death Penalty Laws

DENVER (CN) - Attorneys for the man accused of the Aurora movie massacre want Colorado's capital punishment laws declared unconstitutional.

In a series of motions Tuesday, attorneys for James Holmes asked that the state's death penalty be declared arbitrary and capricious, cruel and unusual, and in violation of constitutional standards set by the U.S. Supreme Court.

Holmes is accused of murdering 12 people and wounding dozens at the midnight premiere of a Batman movie in an Aurora theater on July 20, 2012.

The three motions submitted to Arapahoe County Judge Carlos Samour constitute an exhaustive legal broadside on Colorado's capital punishment laws.

One motion states : "Mr. Holmes has a fundamental right to not be put to death under a system in which geography, income, race, gender, venue, the status of the victim, and a host of other arbitrary, extra-judicial factors have the most influence on whether a defendant lives or dies."

The deputy state public defenders claim Holmes is more likely to face the death penalty in Arapahoe County than in most other counties in Colorado. In the past decade the state has sought the death penalty against suspected murderers 11 times; of those, 8 were in the 18th Judicial District, where Holmes will be tried.

"Several months ago, when presented with the impending execution of death row inmate Nathan Dunlap, Governor John Hickenlooper granted him a reprieve, relying heavily on the fact that a defendant's likelihood of facing the death penalty in Colorado depends largely on the jurisdiction in which his case arose," the first motion states.

That motion quotes Hickenlooper as saying: "As one former judge said to us, '[the death penalty] is simply the result of happenstance, the district attorney's choice, the jurisdiction in which the case is filed, perhaps the race or economic circumstance of the defendant.'" (Brackets in complaint.)

In a second motion , the defense claims that Colorado's punishment for capital murder is cruel and unusual as defined by state and federal law.

"In measuring and assessing contemporary standards of decency, one important consideration is whether there is a decline in the use of a practice," the second motion states. "Throughout the country and in Colorado, the death penalty is in steep and consistent decline.

"Across the country, states are abandoning the death penalty. In 2004, the courts declared the death penalty to be unconstitutional in New York. In 2007, New Jersey repealed its death penalty law, with New Mexico following suit in 2009, Illinois in 2011, Connecticut in 2012, and Maryland in 2013. In several other states, there has been a de facto moratorium on executions for many years. In 2013, a majority of Nebraska lawmakers voted to repeal the death penalty, but the bill died because of a filibuster by opponents.

"Even the very architects of the modern capital scheme have given up. In 2010, the American Law Institute withdrew its support for the model capital sentencing stature it had drafted, citing 'intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.'"

Death sentences have declined by 56 percent nationwide since 1999. Colorado has executed just one inmate since 1967, the second motion states.

"Over more than the past decade, there are so few capital sentencing jury proceedings, confined to essentially one jurisdiction - the Eighteenth Judicial District - that it cannot be said that any of these capital sentencing hearings, or the freakishly rare death sentences that result - serve any penological purpose. None of the proffered penological justifications are satisfied by a penalty that is applied so rarely and so inconsistently - or, as noted above, by a penalty that is actually imposed (if ever) many years or decades into the future. ... For Colorado defendants, that delay is essentially a lifetime which, ultimately, is served behind bars without an execution anyway," the motion states.

"The inconsistent and freakishly rare use of the death penalty in Colorado is a violation of the cruel and unusual punishment and substantive due process clauses of the state and federal constitutions, as well as Article II, section 3 of the Colorado Constitution, because it means that those who are actually sentenced to death and executed are not categorically more deserving of the penalty than are the vast majority of murders throughout the state."

In the third motion , the public defenders claim Colorado's death penalty is unconstitutional because it violates standards set by three U.S. Supreme Court rulings.

Citing data from the Capital Jury Project, the defense asks whether any capital jury could apply such constitutional standards evenly.

"Do modern capital juries - in practice - live up to what modern death penalty laws requires or do they fall short? And if they are not performing as the law requires them to, how far short of the law's requirements do they fall and on what kinds of measures? Are these minor flaws we can chalk up to human frailties? Or do these failures go right to the heart of what our system of justice has repeatedly and consistently emphasized as its most fundamental constitutional prerequisite for a lawful death sentence: The elimination of arbitrary and capricious decision-making, replaced by capital decision-making that is 'directed and limited,' 'channeled' 'by clear and objective standards' that provide 'specific and detailed guidance that 'make rationally reviewable' the 'reasoned' 'process for imposing a sentence of death,' if the death penalty is itself to survive," the third motion states.

This motion claims that the Capital Jury Project found "sobering, incontrovertible evidence of: (1) premature decision-making, i.e. decisions for death being made prior to hearing or considering mitigation; (2) bias in jury selection; (3) juror failure to comprehend instructions; (4) erroneous beliefs that death is required; (5) evasion of responsibility for the punishment decision; (6) racial influence in juror decision-making; and (7) underestimation of non-death penalty alternatives."

To sum it up, in the third motion Holmes attorneys warn against "a death penalty scheme infected with caprice, prejudgment and bias."

The motion adds: "The Colorado Supreme Court, like the United States Supreme Court, has rested the constitutionality of the death penalty upon certain assumptions about actual juror understanding and behavior. For thirty-five years, assumptions have been piled upon assumptions, to the point that the entire system depends upon their truth. Now, incontrovertible, hard scientific evidence reveals those assumptions to be nothing more than false hopes. There can no longer be any doubt that, across all variables, the death penalty sentencing system is not being applied in compliance with constitutional mandates of the lines of cases identified herein as Furman/Gregg, Woodson/Lockett, and Morgan."

The motions also challenge the constitutionality of "statutory aggravating factors" that could make Holmes eligible for death. The aggravating factors include "intentional killing of a child under twelve," "killing of two or more persons," "lying in wait" and "creation of a grave risk of death."

Holmes is charged with 166 criminal counts, including murder and weapons charges. His trial is scheduled to begin in February.

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Attorneys for Movie Massacre Suspect|Challenge Colorado’s Death Penalty Laws

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