Fiery theater shooting judge on defense mistrial motion: ‘No, we’re done’

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CENTENNIAL, Colo. -- In as fiery a ruling as he's made in over two years presiding over the Aurora theater shooting case, Arapahoe County District Court Judge Carlos Samour Jr. denied the defense's second request for a mistrial in as many weeks on Wednesday.

Specially, Samour called the motion "untimely," "meritless" "improper," and "unprofessional."

The focal point of the defense's motion centered on a video of the court-ordered mental health exam performed by Dr. William Reid. In a segment of that 22-hour exam video played for the jury on day 23 of the trial Tuesday, James Holmes, the admitted gunman in an attack that left 12 dead and 70 injured, described the July 20, 2012 shooting in detail.

In particular, the defense objected to Holmes' depiction of the following events:

  • His detailed description of his difficulty reloading the AR-15 rifle
  • His affirmative response to Reid's statement about him wanting to kill people
  • His affirmative response to Reid’s question about whether he would have shot individuals who tried to surrender
  • His statement that he was willing to shoot a theater employee taking out the trash if necessary

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After detailing those statements, defense attorney Kristin Nelsen made the motion for a mistrial, arguing that when the video was played for the jury Tuesday, it violated Holmes' Fifth Amendment privilege against self-incrimination, as well as his Sixth, Eighth and 14th Amendment rights, all of which deal with a U.S. citizen's rights in the legal system.

The defense also objected to the Arapahoe County District Attorney presenting Reid's mental health exam as "offense" in their effort to prove Holmes' sanity, as well as the prosecution's tactic of "sandwiching" evidence seeking to establish Holmes' sanity between evidence seeking to establish his guilt.

While Nelsen was in the process of citing case law to back up her argument, including Kansas v. Cheever and Buchanan v. Warley, Samour interrupted to call the motion for a mistrial "untimely."

"Let me stop you there," Samour said. "This new argument should have been made before Dr. Reid testified. Not now. If you’re going to make it now, make it on appeal."

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Nelsen tried to argue that since the defense was specifically objecting to portions of the video played Tuesday, it was timely. The argument was not accepted by Samour, who said his "lengthy pre-trial order" spelled out exactly what was redacted from the mental health exam video and what was not, and that objections to the video should have been logged at that time.

As to Holmes' depiction of the shooting in the the Aurora Century 16 theater, Samour called it essential.

Samour also indicated that Holmes' depiction of the crime was solicited by every mental health expert called to testify in this case, including the first court-appointed psychiatrist, Dr. Jeffrey Metzner, whose evaluation Samour ultimately deemed "incomplete," and Dr. Raquel Gur, who will testify as an expert mental health witness for the defense when they begin presenting their case in late June.

"I asked him (Dr. Reid) to perform an evaluation to determine if Mr. Holmes was sane at the time of the commission of the act," Samour said. "He has to talk to him (Holmes) about the offenses in question. I don't recall there being an objection to that."

As far as their objections to the answers Reid solicited from Holmes about the details of the shooting, Samour told the defense "you can't have it both ways."

"You can’t say, 'Well, if we like what an expert ends up saying or the evaluation, it’s OK for the expert to talk to our client,'" Samour said. "'But if we don’t like it or don’t think it’s favorable, then we’re going to object to it and call it unconstitutional.'

"For all those reasons," Samour continued. "The motion for mistrial is denied as meritless."

Nelsen asked for permission to make one last objection to the ruling that Samour swiftly denied.

"No," he said. "We're done. Thank you."

Samour also denied a motion for a mistrial made by defense attorney Daniel King on May 28, in response to a premature sanity declaration made moments after Reid took the stand for the first time.

After questioning Reid about his qualifications, District Attorney George Brauchler asked him about Colorado's legal standard for insanity. Reid instead responded with his opinion about Holmes' sanity.

“My opinion is that whatever he suffered from, it did not prevent him from forming the intent and knowing what he was doing and the consequences of what he was doing,” Reid said.

In a much more tempered ruling given after dismissing the jury for an hour of private review, Samour denied the motion for a mistrial but chose to provide the jury with additional instructions on the legal standards of insanity and required Brauchler to ask several clarifying questions of Reid.

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