The Aurora, Colo.,
Arapahoe County Judge Carlos A. Samour Jr. impaneled twice as many jurors as necessary to hear the case as insurance against interruptions in the five-month death penalty trial. The jury is composed of 19 women and five men, 12 of whom will eventually find out that they are alternates.
The lawyers as well as all the jury members are under orders by Samour not to discuss the case and not to discuss media coverage of the case.
Holmes has acknowledged that he killed 12 people and injured 70 on July 20, 2012, during one of the worst mass shootings in American history. He faces 166 charges, including first-degree murder and attempted murder. He has pleaded not guilty by reason of insanity.
The jury problems started when Juror 872's phone rang during a break last week. Although she and her husband knew that she was not allowed to discuss the case, her husband called to ask about news reports that one of the attorneys had tweeted about the case from the courtroom.
Her phone was on speaker, and she was one of five people on the court's patio, where jurors gather to smoke.
This is what 872 said under questioning by Samour: "Last Thursday or Friday, my husband called me and asked me a question about what he saw on Facebook about Twitter. He was on speaker.... He asked me if I knew who the lawyer was.
"I said, 'Why?' He said, 'That idiot was tweeting on Facebook.' He knows I'm not supposed to talk about it. I don't look at it in the paper.... Him and I got into a big argument about it. It just happened to be at lunch."
Juror 872's husband also asked her whether she knew who "Brauchler" is, referring to Arapahoe County Dist. Atty. George H. Brauchler, who is the main prosecutor in the case and who sent the offending tweet.
"I said, 'He's one of the lawyers,'" 872 recounted in court Tuesday, as the rest of the jurors waited outside of Division 201. "He said, 'Well that idiot tweeted during the testimony.' He didn't say what he tweeted."
On Thursday, Brauchler tweeted, "I agree on the video. I hope the jury thinks so too." According to the Denver Post, he later apologized, explained that he thought he was sending a text, not tweeting, and took the offending post down quickly.
Holmes has been assessed by two court-appointed psychiatrists, one of whom recorded the sessions on video. The prosecution played all 22 hours of interviews in court.
Samour later prohibited attorneys from tweeting and texting during court.
When Juror 872 was asked Tuesday why she did not report the incident to the judge, as he advised repeatedly every day when excusing jurors for breaks and when court is over for the day, she replied:
"There was no excuse. I just don't really pay attention to my husband most of the time. It just wasn't important.... It was just kind of pushed under the rug and forgot about."
Juror 673 alerted the judge to the problem on Tuesday. Although the defense asked that she be dismissed under an abundance of caution, Samour allowed her to stay and thanked her for her candor.
In all, the judge questioned five jurors about the incident and dismissed three of them.
Juror 673's note to Samour said that during the lunch break Monday, Juror 872 made some comments that led her to believe that she had been watching the news. That conversation occurred on the patio, according to the Denver Post, and at least two other jurors were present.
In the note, Juror 673 told the judge that the offending juror knew an attorney had tweeted and that attorneys had been prohibited from bringing their phones into the courtroom.
Although Samour did not explicitly list the offenses that got the jurors kicked off the trial, his conversations with attorneys underscored various concerns: that Juror 872 had heard about and talked about news reports; that she and others had not mentioned the incidents to the judge as instructed; and that they were not entirely candid during questioning Tuesday.