Judge Carlos Samour Jr. has allowed prosecutors to display X-rays and autopsy photos of 6-year-old Veronica Moser-Sullivan, the youngest of 12 people James E. Holmes killed during a midnight screening of the “The Dark Knight Rises” in July 2012.
The 58-pound child was shot four times before she died. A bullet tore through her liver, spleen, kidney and pancreas. Another went through her right buttock, her hip and her bladder and remained lodged in her 4-foot-4 frame.
Jurors wiped away tears as they listened to Arapahoe County Coroner Kelly Lear-Kaul describe the damage Holmes' rampage wrought on the fragile little body and as they viewed the images, the ghostly X-rays, the gruesome photos.
But will the jury in Division 201 of the Arapahoe County Justice Center ever see the sparkly sandals and tiny earrings the little girl wore on the night she died?
Not a chance.
“Yes, they are things that she was wearing,” Samour told the court during the fourth week of Holmes’ months-long trial. “But what’s the probative value? What does it go to other than she was wearing them? And then there is the risk for prejudice that those items carry with them.”
As jurors weigh whether to find that the 27-year-old killer deserves the death penalty, their experience in a suburban Denver courtroom raises a thorny legal question: When it comes to the gory evidence of a terrible crime, how much is too much for a jury to hear?
The panel includes a physicist and a gas station attendant, a plumber and a special education teacher — people unlikely to encounter mayhem in their everyday lives. But as jurors decide the fate of one of America’s most notorious mass shooters, they face horrors that make even veteran first responders weep.
The 19 women and five men who constitute Holmes’ jury and its alternates have seen photos of dead bodies strewn across a bloody movie theater. They have heard about a woman so gravely wounded on that awful night that she had to hold her intestines inside her body until help came.
Victims on the witness stand have described how other people’s blood coursed over their faces, gobs of flesh in the sticky red rivers. They have talked about the shrapnel and bullets that tore through arms and legs and collar bones, relegating at least three people to wheelchairs.
Defense attorneys have fought to bar the grimmest evidence, and the jury has been warned not to decide Holmes’ fate based on sympathy, revulsion, rage or any other emotion.
Holmes is charged with 166 counts — including first-degree murder and attempted murder — in the rampage that killed a dozen and injured 70 more. His attorneys acknowledge that their client is responsible for the mayhem; he has pleaded not guilty by reason of insanity.
Prosecutors are trying to persuade the jury to convict Holmes and to find that he deserves to be put to death. They must prove every one of the charges, so jurors will hear from a lengthy parade of witnesses during the estimated five-month trial.
Many survivors already have testified. Stefan Moton, paralyzed from the chest down, rolled up to the witness stand in an electric wheelchair maneuvered via mouth control. Caleb Medley, who cannot talk, spelled out his answers using a large white alphabet board. As he pointed, an interpreter read the letters aloud.
Rick Kornfeld, a former assistant U.S. attorney, described the prosecution’s performance as “certainly not of the less-is-more school of trial advocacy.” He warned that even in a horrendous crime like this, there comes a point when enough is enough.
“You run the risk of traumatizing the jury, for what purpose,” Kornfeld said. “At a certain point, you can pound them over the head with so much evidence that the stuff that really matters, they may be really punch-drunk by the time they see it.”
Still, during the lengthy selection process, potential jurors were warned that the evidence would be hard to bear, said Craig Silverman, a former Denver chief deputy district attorney. Those who could not stand it, he said, did not make the cut.
Arapahoe County Dist. Atty. George H. Brauchler told potential jurors that the trial would be “a roller coaster through a haunted house,” Silverman recounted. And Brauchler has been careful to intersperse intense stories with more mundane testimony so as not to overwhelm the courtroom.
“If the prosecution is doing its job, the jury will want to embrace the victims and react accordingly,” Silverman said. “It's all about capital punishment too.... You have to get people angry to vote for death.”
But even Silverman, who has successfully prosecuted a death penalty case, has been unable to endure some of the more heartbreaking testimony.
Silverman watches a live stream of the trial from his office. But when Christina Angelique Blache testified, the veteran attorney had to shut it off.
Blache, an Air Force veteran, was shot in both legs. At one point, she testified during the trial’s first week, “I looked down at my injuries. My jeans were shredded. I took my jeans and twisted and twisted to make a tourniquet so I wouldn't bleed to death.”
As exhausted first responders tried to help Blache out of the chaotic theater, she said, they dropped her.
She landed on another victim.
Someone who was not moving.