DENVER (CN) - Attorneys for accused mass murderer James Holmes asked the Colorado Supreme Court to reverse an order allowing shooting victims to watch "critical moments" of the trial.
The petition, filed Friday and unsealed Monday, claims that Arapahoe County Judge Carlos Samour's decision allowing victims to watch the trial and pretrial hearings violates Holmes' right to a fair trial.
"The trial court has held that every endorsed witness that was present in the two affected movie theater when the shooting took place on July 20, 2012, is exempt from sequestration and may attend the entirety of Mr. Holmes' capital trial," the 51-page petition states. "As explained in further detail below, allowing these victim-witnesses to attend the entire trial has the potential to gravely impact the proceedings. At the same time, the prejudice this ruling will have on Mr. Holmes' right to a fair by an impartial jury will be extremely difficult to effectively demonstrate on appeal. For example, victim-witnesses' exposure to months of upsetting and graphic testimony is likely to profoundly affect the way that these individuals testify at both the merits and the sentencing phases of the trial. However, this effect will be nearly impossible to quantify on appeal, as there will be no way to show how these witnesses' testimony would have been different had they not observed the trial process. Moreover, even if Mr. Holmes successfully demonstrated on appeal that allowing the victim-witnesses to be present for the entirety of this proceeding violated his right to a fair trial, no appellate remedy can undo the effects of the re-traumatization these individuals will have experienced from sitting through the first trial. Thus, even in the event of a retrial, the harm done to Mr. Holmes' constitutional right to fair trial will be irreparable, as the victim-witnesses will have already had the experience of sitting through the first trial and listening first-hand to months of upsetting and graphic testimony. This experience is likely to continue to affect their testimony at any subsequent re-trial."
The defense also claimed that there are more victim-witnesses than those who were injured or killed in the shooting and that the prosecution showed that including all of them in the trial would be difficult.
"Mr. Holmes has been charged with 166 felony counts, including numerous counts of first-degree murder and attempted murder, in connection with a shooting at the Century 16 theaters in Aurora on July 20, 2012. The shooting occurred in Theater 9, but several bullets also traveled through the wall and into Theater 8. According to the prosecution, there were approximately 375 individuals present in Theater 9, and similar number in Theater 8. Shortly after the incident, prosecutors made a decision to charge Mr. Holmes with two counts of first-degree murder for each of the twelve deceased victims, as well as two counts of attempted murder for each of the 70 injured victims. The prosecution specifically elected not to pursue charges against Mr. Holmes for every individual who was present in Theaters 8 and 9 but was not physically injured, noting that the decision was made to 'file a charging document that will allow for a manageable trial,'" the defense said.
The prosecution claimed that victims have an "unqualified right" to be present at the trial and sentencing hearing, under the Colorado Rights Act. They also argued that even though there may be a sequestration order on witnesses, "the court has the discretion to allow any witnesses to be exempt from sequestration."
The trial is expected to be on schedule. It is set for Oct. 14.
Prosecutors have indicated they will seek the death penalty.