Blood on the Tracks: The Aurora Theater Shooting Hearing

Mass murder suspect James Holmes stared straight ahead in a Colorado court Monday morning, even when police witnesses broke down on the stand.

judge-top.jpgA courtroom sketch shows Aurora Police officer Justin Grizzle giving testimony at today's preliminary hearing (Reuters)

The Batman movie Dark Knight Rises was still playing on the screen in the early morning hours of July 20th when the first police officers entered Theater 9 of the Century 16 multiplex in Aurora, Colorado. The film was playing through a theater thick with tear gas and smoke; through a room filled with the screams of victims and empty bullet casings; through a scene of carnage so bloody that two police officers, six months later, could not recount what they had seen that night without choking up on the witness stand in open court.

The movie played on as officers of the Aurora Police Department began to assist the wounded and mark the dead. It played on as the strobe lights flashed and the alarm sounds wailed and the cellphones rang. It played on as the first responders shouted at one another over the din to better secure the room. And it was only after some of this terrible and grim business had been accomplished, and some order had been restored to one of the worst crime scenes in Colorado history, that the film stopped being shown on the screen inside Theater 9.

By this time, the suspect, James Holmes, was in custody, just feet away from the inside of the theater, on the other side of the back exit door which police say he used both to enter the theater with his weapons and to exit from it when he was done. By the time the movie stopped, Holmes was handcuffed and stripped of his body armor, and his gas mask, and his helmet, and had told the police that his apartment, not too far away, was booby-trapped with an "improvised explosive device" -- the exact words Holmes used, according to the police.

By the time the film had stopped playing, some of the victims had made it outside, trailing so much blood that one officer at the scene testified that he nearly slipped on his way into the theater. "Most of them were covered with blood," said Aurora Police Officer Justin Grizzle, "lots of blood." A former paramedic, Grizzle made four trips in his patrol car to area hospitals that night. He told the court that when he made turns in his patrol car he could hear the blood of the victims sloshing around on the floor of the back seat.

The Hearing

This is how Colorado prosecutors began the preliminary hearing in the case of Colorado v. Holmes, a case about wholesale murder and mental illness that is unlikely ever to answer the questions we have about why it happened. It took roughly three hours Monday morning in Arapahoe County District Court for four uniformed police officers to begin to tell the story of how they came upon James Holmes; and why they think he's the man who killed 12 people, and wounded 58 more, after wrapping himself in body armor and setting off tear gas.

State law permits the defense to request such a hearing -- to force prosecutors to establish the contours of their case under the low "probable cause" standard. For the defense, since the client hasn't yet even been arraigned or entered a plea of not guilty, it's a relatively free preview of some of the state's evidence. For prosecutors, it's a chance to share more of the story with the public -- meaning potential jurors. Some preliminary hearings can an hour or so. Because of the nature of the crime, this one is expected to take the better part of this week.

The courtroom Monday morning was full, with the typical bride's side/groom's side dichotomy. On one side of the aisle were the journalists who are covering the story. On the other side of the aisle were the survivors and family members of the victims, and victims' rights advocates, and members of the general public. There were a great many more tears on the one side than the other. And there were more uniformed sheriff deputies inside that courtroom than I ever remember seeing at any of the federal terror trials I have covered in Washington or New York.

And at the center of it all was Holmes. He now has a full dark beard, and his hair, too, is dark brown and bushy. He looks a bit now like Tom Hanks in Castaway -- or maybe Theodore Kaczynski -- only less disheveled. He never once turned to face the gallery. I did not even see him turn slightly to face his defense team or to utter a word to them. He barely moved his head during the morning in court. He just stared ahead, blinking frequently at the testifying officers, even when they glared at him or were moved to tears by the story they were telling.

The Arrest

"When I first saw him," Aurora Police Officer Jason Oviatt told Chief District Judge William Slyvester, "I thought he was a police officer." Oviatt had been sent around to the back of the theater complex to secure the perimeter when he says he came across a man standing by a white car fully clothed in body armor. Sgt. Gerald Jonsgaard, who was perhaps the very first officer to arrive on scene, had the same reaction. He told the court that he thought to himself when he saw Holmes at that moment: "How did this SWAT officer get here so quick?"

Oviatt came across Holmes just feet away from the back entrance to Theater 9. When he realized that Holmes was not a fellow officer, Oviatt drew his gun. And that was that. Holmes "immediately" raised his hands in the air, then backed away from the car and laid down face first on the ground to be frisked and handcuffed. "He did what he was told," Oviatt told the judge. "He was completely compliant. There wasn't even normal tension" in Holmes' body when the police dragged him away from his car to better search him.Tilling the ground for the coming mental illness defense, defense attorney Daniel King asked Officer Oviatt on cross-examination: Was the suspect uncooperative with police demands? No, said the cop. "Did he try to run away?" No, said the cop. "Did he try to grab a weapon?" No, said the cop. "Did he threaten you with a weapon?" No, said the cop. "He was very, very relaxed," Oviatt said. In his arrest report, the officer had written that Holmes "stared off into the distance and seemed out of it." We'll hear more about this before this case is through.

When Holmes surrendered to Officer Oviatt, Sgt. Jonsgaard was watching from a high point yards away. Holmes' actions, the officer testified, were "instant and exaggerated." The man whom police say carried out this coordinated attack, right down to the plastic door stop he had used to prop open the exit door, had no fight left in him when the cops came to him. There was a handgun on the top of Holmes' car. There was another in the passenger-side door pocket. And there was an AR-15 assault rifle on the sidewalk just a few feet away.
 
The VictimsEvery mass murder case affords prosecutors with an enormous tactical advantage. The sheer number of casualties, the collective stories of woe, can overwhelm judges and jurors and unduly prejudice defendants. Some judges handle this inherent tension better than others. It is too early to say how well Chief District Judge William B. Sylvester is protecting Holmes' fair trial rights under the Sixth Amendment. But it is not too early to say that prosecutors are using the preliminary hearing to amp up the emotional pressure on potential jurors.

So there was Officer Grizzle, testifying about "huge amounts of blood" in his patrol car and in the theater, and about how he transported to hospitals victims who had been shot in the head. One such victim, a desperate man, tried to escape the car while it was moving to return to the theater to find a young girl, his fiance's daughter, killed in the attack. And there was Aurora Police Department Officer Aaron Blue, who testified that he transported a dying Jessica Ghawi to a hospital in his car. "Every time she moved she stopped breathing," he told the court.

And then there were the surveillance tapes, later in the day, which showed Holmes walking into the theater. And there were the photos introduced into evidence which showed where some of the bullets hit inside Theater 9. And there was the list of where the victims had been seated inside the theater when the bullets had hit them. Such evidence goes far beyond the "probable cause" standard prosecutors have to meet at this stage of the case. It goes to the core of what the heart-wrenching trial will look like if we ever see one here.

And through it all, as far as I could see, the defendant stared straight ahead. He stared straight ahead when Officer Blue glared at him -- glared at him with a ferocity you see in the movies but rarely in real life -- while identifying him as the suspect in the case. He stared straight ahead when Sgt. Jonsgaard was moved to tears while testifying about finding no pulse on the lifeless body of little Veronica Moser Sullivan. Is that a sign of mental illness? Is it a sign of heavy medication? Is it a sign of brutal indifference? We may never know.

The Questions

Why did he do it? I suspect that is the question most people asked of themselves and each other in July when the news of this crime broke across the world. And it is the question most people still have today as they begin to learn the details of what happened inside that
theater that night. We always ask that question when someone does something unimaginable to us. But this case simply isn't going to answer that question for us, especially if Holmes, as expected, asserts some sort of insanity defense.

Nor is the case likely to answer some of the other questions it begs. For example, after listening to Monday morning's testimony, I was struck by three basic questions, each of which assumes that Holmes was the shooter. Why did he stop shooting? The witness told Judge Sylvester that Holmes still had ammunition available to him when he was apprehended. He had time to do more damage. Why did he stop shooting and walk outside the theater to his car? Did he feel as though he had done enough? Or was he planning to go back for more?

Why didn't he run away after he had done it? Based upon the morning's testimony, Holmes made no effort to flee the scene of the crime or to evade his arrest in any way. He was caught just feet from the theater near his car. The defense surely wants the judge and the trial jurors to see this as a sign of Holmes' mental state at the time -- either that he did not appreciate what he had just done or that he accepted what he had done in a manner inconsistent with legal sanity.
 
Why didn't he kill himself after he had done it?
Monday's police witnesses were quick to tell the court that Holmes told them that he had booby-trapped his apartment with explosives. Did he do this because he believed that he would never return that night from the theater? And if so where does the body armor come in? If he was prepared for a shootout with the police why didn't he have a shootout with the police? Why didn't he reach for the gun on the roof of the car? Why did he so meekly succumb to Officer Oviatt? And will we ever know?


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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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