All 19 jurors–12 deliberating and 7 alternates–will return to the Centennial, CO courtroom today to begin the next phase of the capital murder trial of James Holmes. This penalty phase has three parts which may or may not be completed, depending upon how the jury votes at each step.

The first part is expected to start and finish today. This is where the State presents its aggravating factors; there are 17 factors listed in the statute; probably 4 or 5 will be applied and argued today. Each side will give an opening statement, not to exceed 40 minutes. The prosecution is expected to state that the evidence it presented in the guilt phase as to the 12 murder victims can be considered at this phase also. Once all the evidence is in, there will be arguments by the attorneys. The State will go first, followed by the defense. The State also has a rebuttal argument, if they choose. The attorneys told the judge that 40 minutes for each side should be sufficient for their arguments on the existence or not of one or more aggravating factors.

The deliberating jurors will vote on whether one or more aggravating factors is proven beyond a reasonable doubt. If they vote no, the trial is finished and Holmes receives a life without parole sentence. If they vote yes, the trial moves to the defense side of the courtroom. The second part of this phase will then begin with the presentation of mitigating evidence. The evidence is expected to include former teachers, his parents, and other individuals who will humanize him. Upon completion of this evidence, which could take a week to present, the jury will hear more arguments. But each side only argues once; there is no rebuttal. The jury will deliberate and answer the question whether the mitigating evidence outweighs the aggravating factors. If yes, the trial is finished and Holmes receives a sentence of life without parole. If no, the trial moves to the final part of this phase.

The third and final part is a deliberation on whether Holmes should receive a life or death sentence. This is where victim impact statements may be presented by the State. The arguments to the jury at this point will include rebuttals by each side; thus, if both sides choose to exercise their right to rebut, the potential arguments are state, defense, rebuttal, surrebuttal.

Finally, the jury must be unanimous in its decision to impose death. A non-unanimous verdict means Holmes receives a sentence of life without parole.

After last week’s guilty verdicts, several family members of the deceased victims publicly stated that they had been most concerned about the guilt phase as they did not want jurors to reach a verdict of not guilty by reason of insanity. That would have meant that Holmes theoretically could be released one day. Now, regardless of the outcome of this second phase, Holmes will never be free again.

Court is scheduled to begin at 8:40 am MST; 10:40 am EST.

9:15 MST The attorneys and judge have been handling instructions and evidentiary issues. The jury has not entered the courtroom yet. The defense acknowledged that they are not contesting anything in this aggravation portion of the penalty phase. There will be only a 20-minute notice when the jury reaches a decision on this portion (that at least one aggravating factor was proven beyond a reasonable doubt). A few exhibits that were introduced at the guilt phase for a limited purpose, including Holmes’s notebook and DVDs of Dr Reid and Holmes, will not be sent back to the jury room during deliberations in this aggravation portion. Those exhibits are unrelated to the aggravating factors. The defense also made a lengthy argument objecting to the State’s proposed powerpoint presentation during arguments in this aggravation portion. Part 2–mitigation–is expected to begin later today. The defense apparently has four witnesses prepared to testify.

9:44 The judge is really annoyed and set a new schedule for using powerpoint. From now on, the party that wants to use one must turn it over to the other side two days before; objections to the powerpoint are to be made the day before.

10:15 The judge takes a break–to give his court reporter a break.

10:45 The judge is back. He overruled all the defense’s objections to the powerpoint slides to be presented by the prosecution.

The judge read preliminary instructions to the jury. The State then said they are NOT presenting additional evidence nor is the defense. The judge then read instructions related to what they are to decide in this part: the existence of one or more aggravating factors.

The State alleges five aggravating factors. The jury must find that all the elements of at least one aggravator are proven beyond a reasonable doubt. The aggravators and elements are:

1. Killing two or more

a. the defendant
b. unlawfully
c. intentionally, knowingly or with universal malice manifesting extreme indifference to human life generally
d. killed two or more persons
e. during the commission of the same criminal episode

2. Killing a child (applies to counts 9 and 21 only)
a. the defendant
b. intentionally
c. killed a child under the age of 12 years

3. Creating a great risk of death to others (in addition to the 12 deceased)

a. the defendant
b. in the commission of murder in the first degree
c. knowingly
d. created a great risk of death to another (in addition to the 12 deceased)

4. Especially heinous, cruel, or depraved manner

a. the defendant
b. committed the offense of murder in the first degree
c. in an especially heinous, cruel or depraved manner (which means in a conscienceless or pitiless manner, unnecessarily torturous to the victims)

5. Lying in wait or from ambush

a. the defendant
b. committed the offense of murder in the first degree
c. while lying in wait or from ambush

After the break (and before summations), juror 737 asked to speak to the judge. He is the foreman and is concerned that someone he didn’t know tweeted him a link to a Newsweek article that named him–first and last name. He’s the Columbine massacre survivor. Yikes!

Orman argued the presence of all five aggravators. The defense chose not to offer a closing argument. Jurors retired to deliberate at about 1:25 pm MST. The judge declared a one-hour lunch for the parties. Lunch is being brought in for the jurors. Court will be back in session at 2:30 MST/4:30 EST.

2:30 MST It appears the judge is going to ban Newsweek from the courthouse. Orman was right when he said the judge’s power to take action against Newsweek is somewhat limited, given the freedom of the press.

Orman tells the judge that the Daily Beast is owned by Newsweek. Judge doesn’t take further action against the Daily Beast, only Newsweek. His is issuing an order banning them from the courthouse.

Question from the jury: They want a DVD player to review evidence. The evidence they want to review is a video and an audio recording of defendant on the day of his arrest and three surveillance videos at the theater that night. The judge will let them have the DVD player for 75 minutes. He does not believe the total of the 5 exhibits will exceed 75 minutes. Orman checked out the length of the exhibits; they total about 50 minutes.

4:30 No verdict today in the first part of the penalty phase. Jurors announced that their hours of deliberations will be 8:30 to 4:30 for all parts of this penalty phase. They went home at 4:30. I suspect this is a surprise to the attorneys as the defense didn’t even present an argument to the jury and had four witnesses ready to call to the stand this afternoon for mitigation!