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Last week’s 165 guilty verdicts – including 24 counts of first-degree murder – against James Holmes distinguish the beginning of the next phase of his trial: sentencing. The jurors will now decide his fate: life in prison without parole, or death.

During this phase of the trial, the jury can consider all evidence that was presented in the verdict phase: the nature of the crime, character, history, and background of the defendant, victim impact, and aggravating and mitigating factors.

Many of the shooter’s victims  short during the guilty phase of the trial, but now the jury will hear more about victims like Caleb Medley, who is in a wheelchair and suffered severe brain damage after being shot in the head.

“Prosecutors get to put on victim impact testimony,” said Denver Defense Attorney David Lane. “They are going to talk about how this crime has affected their lives irreparably. They can’t ask for a particular sentence, but they can discuss the impact of the crime on their lives. It’s going to be gut-wrenching testimony to listen to.”

In Colorado, a death penalty hearing normally consists of four stages: the eligibility stage (aggravating factors), mitigating factors, weighing mitigation against aggravation, and morality. Judge Carlos Samour merged phases 2 and 3, so in this trial, there will be three stages.

Eligibility Stage

The first stage is the prosecution’s case. Its goal is to prove at least one aggravating factor beyond a reasonable doubt; if they can’t prove any, the defendant will get a life sentence. Aggravating factors are evidence that would merit a harsher sentencing for the defendant, including the following:

1. The defendant killed a person under 12 years old,
2. The crime was committed with extreme indifference to the value of human life,
3. The defendant intentionally killed more than one person, or
4. The crime created a grave risk of death to persons other than the victims who were killed.

Mitigating Factors and Weight

The second stage is the defense’s case.   During this phase, Holmes’ attorneys are expected to call his parents and sister, various family friends and at least one college roommate. Mitigating factors are evidence regarding the defendant or circumstances of the crime that would merit a lesser sentence, including the following.

1. The defendant’s age at the time of the crime
2. Whether the defendant’s capacity to appreciate the “wrongfulness” of his conduct, or to conform his conduct to the requirements of law, was “significantly impaired, but not so impaired as to constitute a defense to prosecution,” (herein lies the distinction between insane and crazy; although the jury judged him legally sane and guilty of his acts, they must now decide whether he was sane enough to suffer capital punishment as a result),
3. The emotional state of the defendant at the time of the offense, or
4. If the defendant has no significant prior criminal conviction.

Legal experts expect the defense to focus heavily on both the defendant’s lack of prior criminal conviction, and his mental illness significantly impairing his ability to appreciate the wrongfulness of his actions.

“I think his background and history is replete with evidence of mental illness, and that’s not going to bode well for the prosecution,” said Bob Grant, former Colorado prosecutor whose case against Gary Lee Davis led to the state’s last execution, in 1997. “He never committed another crime before this. Those are the kinds of things that sway jurors.”

The defense’s strategy in every potential death penalty case is simple: save the client’s life.

Explains Lane, “While this may represent one of the worst killings, [the defendant]’s moral culpability is far less than many death penalty defendants, despite the heinous nature of the crime being at the far end of extreme.”

In this second phase, the jury will also weight the mitigating factors against the aggravating factors. As to each count of first degree murder, the jurors will only get to phase 3 if each of them decides that the mitigating factors do not outweigh aggravating factors.

Morality and Mercy

This is the final  phase and it’s the last chance for each jury member to weigh the moral character of the defendant.  In other words, each one of them must decide, deep down in their gut, whether or not Holmes deserves the death penalty.

“Jurors are instructed that this is an individual moral decision for each person,” said Lane. “Unlike the guilt phase, where there are facts to be discussed and there is a lot of back and forth. At a penalty phase you’re dealing with a moral issue.”

In the case of capital punishment

In 1984, the average time spent on death row was 6 years and 2 months; by 2013 to 15 years and 5 months. Since the defense’s goal is to save their client’s life, if the client is sentenced to death they will be taking every possible step to get them off of death row, which comes in the form of appeals, dragging out the time and money spent on death row inmates.

“A death penalty sentence will only drag out the closure even longer for the victims and their family members,” said Lindsay Schlageter, the Communications Director for the Better Priorities Initiative, a statewide campaign to end the death penalty. “When someone is sentenced to death, there are a lot of appeals granted to them because the state would be taking their life.

If the jury gets to all three phases, the trial is expected to last until at least mid-August.

Editor’s note: CU News Corps will honor the victims of this tragedy with every post via this graphic.