DENVER (AP) — Battling to save their client’s life, lawyers for theater shooting defendant James Holmes broadened their attack on the death penalty, saying in motions released Tuesday that the sentence is so unevenly imposed in Colorado and so rarely carried out that it is unconstitutional.
The lawyers also argued that death penalty opponents should be allowed to serve on Holmes’ jury, and that victims of the shooting shouldn’t be permitted to testify when the jury is deciding punishment.
Separately, the judge on Tuesday delayed a possible showdown hearing for a Fox News reporter over whether she has to reveal her confidential sources for a story about Holmes. The delay gives the reporter time to hear whether a court in her home state of New York will reject a Colorado subpoena seeking the names.
Holmes has pleaded not guilty by reason of insanity to multiple charges of murder and attempted murder in the attack that killed 12 people and injured 70 others in a suburban Denver movie theater in July 2012.
Prosecutors are seeking the death penalty. The trial is scheduled to start in February.
The defense filed 20 motions last week that were made public Tuesday. Six were challenges to the death penalty, arguing among other things that Colorado executes prisoners so rarely that it falls under the U.S. Constitution’s ban on cruel and unusual punishment. The state has executed only one person since 1967.
The defense also said Colorado prosecutors are so inconsistent in whether they seek the death penalty that it has become arbitrary and capricious, again violating the Constitution.
In 10 years, prosecutors have sought the death penalty in only six of Colorado’s 64 counties, the defense said.
To support their case, defense lawyers quoted Gov. John Hickenlooper, who granted an indefinite reprieve to a death row inmate in May. Hickenlooper cited doubts about the fairness of Colorado’s death penalty system and noted inconsistencies from county to county.
Holmes’ lawyers began questioning the death penalty even before prosecutors announced in April that they would seek it. They filed other challenges in May and August. Arapahoe County District Court Judge Carlos A. Samour Jr. rejected some but hasn’t ruled on others.
In another motion, the defense asked Samour not to automatically disqualify potential jurors because they oppose the death penalty.
Citing social science research, the defense said barring death penalty opponents produces juries that are partial to the prosecution, biased against the defense, and more likely to convict a defendant. That violates Holmes’ right to a fair trial, they said.
The defense also said allowing victims to testify during the penalty phase — which would happen only if Holmes were convicted — would overwhelm jurors with emotion and keep them from relying only on facts if they have to decide between execution and life without parole.
Another motion says that if jurors convict Holmes, they should be taken to see Colorado’s death chamber as well as the prison holding death-row inmates before they deliberate his sentence.
Prosecutors are expected to argue against the defense motions. Neither side will comment publicly because of a gag order issued by the judge.
Samour agreed to postpone a Sept. 30 hearing for Fox News reporter Jana Winter until Jan. 3.
Citing unidentified law officers, Winter reported that Holmes sent a notebook containing violent drawings to a psychiatrist.
Attorneys for Holmes say whoever spoke with Winter violated a gag order and should be punished. They also say several Aurora police officers might have lied under oath when they denied being Winter’s sources, undermining their credibility as trial witnesses.
The judge hasn’t said whether he will order Winter to reveal the names. Winter could be jailed indefinitely if she refuses such an order. She has said she won’t comply.
To enforce the subpoena seeking the names, Colorado needs the approval of courts in New York, where Winter lives and works. Two lower courts have upheld the subpoena, but Winter has appealed to New York’s highest court.
Samour rejected a motion by Holmes’ lawyers asking for a hearing with oral arguments on each defense motion on the death penalty. He also denied a defense accusation that he had ruled prematurely on some motions.
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