Right now they're going over some last minute requests from the defense (who never seems happy with anything). And now the judge is making an official record of a decision he made yesterday (they do this a lot - an official record is basically speaking about the reasons for a decision out loud in open court so it can be recorded in the transcripts, which means the decisions can be reviewed and argued about in future appeal trials). The judge in this case is extremely careful about making a record of everything. And both he and the lawyers have made specific references to appeal processes several times. In fact, in some cases, the judge has made specific records about things for the explicit purpose of making sure a appellate court understands his reasons and what law he based his decisions on.
And they're still going ...
... now they're talking about the evidence that is to go back with the jury after phase 1, and the slides the prosecution wants to use in phase 1.
Interestingly, the prosecution raised the fact that there were several pieces of evidence that were only to be used to determine insanity in the guilt phase of the trial. They suggested that this evidence NOT go back with the jury during the phase 1 deliberations. This can ONLY benefit the defense, as these items would probably make the jury mad when thinking about their response to phase 1 sentencing.
I'm wondering if the prosecution raised this issue because they knew the defense was going to raise an objection about the presentation they want to use. Apparently the prosecution only gave the presentation to the defense team last night just before 6pm, which they were upset about, but they still managed to come up with a list of reasons why they objected to the various slides.
In addition, the defense has pointed out that they are not objecting to the evidence about any of the aggravaters that are to be discussed in phase 1. And in fact they agree that all the aggravaters are truthful.
Oh wow ... the judge is mad! The defense just went through a 100+ slide presentation from the prosecution with objections for about every 2nd slide. It took her something like 15-20 minutes just going through her objections. When she was done, the judge stated that ...
1. From now on both sides had to submit powerpoint presentations at least 2 days in advance of wanting to use them.
and
2. From now on both sides then had to state their objections to the presentations at least 1 day in advance of wanting to use them.
The prosecution argued that the nature of trial law is that you're solidifying your arguments up until you present them, so it's hard to know 2 days in advance what you're argument is going to be. Then the judge said that if they couldn't come up with stuff 2 days in advance, they'd have to take 2 days between finalizing arguments and actually continuing with the trial.
He was mad because now everyone has to argue about this presentation while the jury is waiting - AND - that the defense had wanted to move ahead with phase 2 today because they had witnesses that aren't available later. So now all these people are waiting when they thought they'd be able to move forward. If the judge had known this was going to happen today, he would probably have told the jury not to come in until tomorrow.
Two other interesting things:
1. The defense says they do not contend that the aggrevaters happened and are accurate, just they are not stipulating to them in court. This means that even though they do not disagree, the prosecution still has to prove beyond a reasonable doubt that these aggrevaters happened. I don't understand why the defense doesn't just stipulate this point if they're not arguing it. During phase 1 I don't believe the jury has to decide punishment ... I think that comes in phase 3.
2. The defense argued that a statement the prosecution makes in the slides - that the tear gas was designed to cause discomfort - is an opinion of the prosecution and not factually accurate. I find it unbelievable that the defense could use such an argument when tear gas itself is purposely used by law enforcement to cause people discomfort - and that the whole design of tear gas is to cause discomfort!
Finally, the arguments back and forth are done and the judge is taking a recess. Not only does his staff (and he) need a break, but now he has to review these objections and make a ruling on them. And all this time the jury is waiting and wondering why they haven't started yet!
The judge also pointed out that he's quite mad at both sides for their powerpoints. First off, at the guilt phase of the trial the defense objected to the prosecution's use of a powerpoint, but then used one themselves. AND the defense argued specific points about slides the prosecution had, and then put those same things in their own presentation and the judge noticed. He hadn't said anything up until now, but he's pointed out that he noticed and he's not impressed.
Finally, the defense lawyer who was speaking (Ms. Brady) was quite upset that the prosecution keeps calling Holmes "that guy" in a sneering tone. And she said that if they call him that one more time in front of the jury she'll object and state her objection in front of the jury. And she didn't say this calmly! She was pissed. Interestingly the judge's reply was that he'd rule on the objection when the time comes, but pointed out that "that guy" has been used a lot already and no one objected before. I think at the beginning of the trial the judge ruled that in court everyone was to be called M. Lastname or by their title (i.e. defense, judge, defendant, etc).
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Sentencing Hearing - Phase 1:
Is almost done! It consisted of the judge reading introductory instructions to the jury. Then both sides saying they had no additional evidence to present. Then the judge reading the final instructions to the jury. After he's done this step both sides get to present closing arguments. Then the jury can deliberate. I'm not sure if the judge is limiting the amount of time for the closing arguments, he hasn't mentioned yet. But the prosecution had over 100 slides for theirs, so I would think each side may take up to 1 hour to present. However, since the defense is not disagreeing with the aggrevaters, so they may not present a closing argument at all. The fact that they have witnesses waiting for the 2nd phase makes me think they assume the jury will find that the proof for all 5 aggrevaters was met beyond a reasonable doubt - and that they'll find this quickly. At the rate they're going, I can't see them done before lunch, unless the judge specifically goes until this phase is done before he breaks for lunch.
They're going to break soon, but only for a short time. The judge indicated that he's given each side only 40 minutes for their closing arguments. And once the jury reaches a verdict on phase 1, it'll only be 20 minutes before they'll reconvene to announce the verdict. I'll probably miss the arguments as I'm going to lunch!!
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I watched a recording of what happened after I left for lunch, and the jury came back from a break. The big thing that happened was that the jury foreman came to tell the judge that on the weekend he'd been sent a tweet from someone he did not know, that contained a link to a story in Newsweek about the trial that included his name!
The judge, at the start of the trial, issued a court order that prevented the media from publishing certain pieces of information, including the names of the juror, while the case is underway. Newsweek had a reporter in the court room for the trial and published stories about it regularly online. However, after being contacted by someone in the "judicial public relations office" they claimed that the reporter who wrote the story didn't know about the court order. (One, if she didn't, she's a shitty reporter. And two, doesn't she have an editor who should have required her to check this?)
Anyway, the juror was quite upset about it, but the lawyers weren't concerned about him as a juror as he didn't read the story. But they were quite annoyed at Newsweek. The judge said that Newsweek did take the story off their website, and their tweet about it on Twitter, but it's already made it's way to other websites and Twitter accounts. The judge has banned Newsweek from being on the court house property from now until the end of the trial - but he initially said he wouldn't charge them with contempt. The defense really wants them to be charged.
The word "Newsweek" must have been said at least two dozen times in the court room in the last couple of hours. Major news organizations are already reporting about the fact that Newsweek violated a court order! And I'm assuming the Newsweek reporter who was at the court house was probably escorted off the property (if they were present). Someone even made the comment that they're probably watching this right now on TV - and they probably were.
I can only imagine how much trouble this reporter is in. Even though they didn't get charged, they are now unable to report the story as it happens. And they are being bashed in the media. Newsweek claimed they weren't going to follow the sentencing portion of the trial, but you know that can't possible be true. Why would you send a reporter to Colorado to watch the trial in person up until he's found guilty, but not stick around to find out if he got the death penalty?
Today is turning into a very interesting day ... but it's almost time for me to leave so I'll probably have to watch everything else once I get home.
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