CENTENNIAL, Colo. — Opening day of the Colorado theater shooting trial got under way with a few hiccups: a juror who may have fallen asleep in court, three others spotted playing on their phones, and one who arrived hours early at the wrong court.
Jury selection is no easy task, and veteran trial consultants warn of bigger challenges ahead.
“What each side needs to worry about in this case are what's called stealth jurors … trying to sneak onto the jury because they have an agenda,” said Robert Hirschhorn, who has acted as a jury and trial consultant since 1985.
James Holmes has pleaded not guilty by reason of insanity to one of the worst mass murders in American history. Prosecutors say he ambushed a crowded suburban Denver movie theater, killing 12 people and injuring 70, as they were watching a midnight showing of the Batman film “The Dark Knight Rises” in July 2012.
The case has drawn international media attention and stoked fiery debate about the death penalty, gun control and the execution of people who are mentally ill — all of which leave open the possibility that someone with a motive might penetrate the panel that will decide Holmes’s fate.
“They do it even more so in really high-profile cases,” said Hirschhorn, whose résumé includes the criminal trials of Terry Nichols, William Kennedy Smith and Robert Durst.
The panel will be asked to find the former neuroscience graduate student not guilty by reason of insanity or to sentence him to death, based only on the evidence they hear during the trial.
“The prosecution is concerned with individuals who have views on punishment or mental health issues that would lead them to be receptive to defense arguments, or who are anti-prosecution in general,” said Jeffrey Frederick, director of Jury Research Services with National Legal Research Group.
The defense, Hirschhorn said, “needs to be wary of what we call ADPers (automatic death penalty jurors).”
For the next several weeks, waves of 7,000 prospective jurors will report to the Arapahoe County courthouse to be sworn in, and will complete an 18-page questionnaire about their background and views on criminal justice, mental illness and the death penalty.
“They are sworn to tell the truth, but a good liar can slip by,” said David Lane, a veteran Denver criminal defense attorney. “The only remedy for prevention is extensive questioning. Probing jurors about their attitudes about other things which would tend to out them as either liberal or conservative are helpful.”
Cornell Law School professor Valerie Hans, who has done extensive research on the jury system, said she doubts “that the full-blown stealth juror is all that frequent.”
“The idea of stealth jurors got a boost with [John] Grisham's compelling novel 'Runaway Jury,' where a juror with an agenda managed to sneak onto the jury to do justice from his perspective,” Hans wrote in an email to Yahoo News.
Hans said the attorneys and judge can encourage more honesty by mixing up the format of their questions during voir dire, when potential jurors may be reluctant or embarrassed to disclose details about their backgrounds and potential biases. Still, she said, hostility toward the defendant’s insanity plea will be a major challenge during the vetting process.
“Among the public, there is a lot of suspicion and hostility toward insanity defenses in criminal trials,” Hans noted. “Many people assume that those who claim insanity are faking it to escape responsibility for their crimes. The public overestimates the frequency and success of the insanity plea, and misunderstands the consequences.”
Hirschhorn — who in 2013 advised George Zimmerman’s defense team to pick an all-female jury at his trial in Florida in the killing of 17-year-old Trayvon Martin — has one other concern about the theater shooting case.
“On the other end of the spectrum, you literally have jurors that are auditioning to try to get on the jury,” he said. “Whether they think it’s their 15 minutes of fame, or a book deal, or going on the Oprah show. High-profile cases take on a life of their own. It’s the ultimate reality-TV show.”
Jason Sickles is a reporter for Yahoo News. Follow him on Twitter (@jasonsickles).