On the eve of the Aurora theater gunman鈥檚 formal sentencing, we have a conversation with the District Attorney who prosecuted the case for seven months. George Brauchler sat down with CU News Corps鈥 Carol McKinley to explain what鈥檚 ahead. 聽This week, starting Monday, dozens of victims who were in theaters 8 and 9 who have not testified will get their chance to look the gunman in the eye and describe how the shooting affected their lives.
Throughout the trial and during this interview, Brauchler talks about 鈥渢his guy.鈥 He鈥檚 referring to the defendant, James Holmes.聽
By the time it鈥檚 over, the convicted theater shooter could 聽receive as many as 聽12 consecutive life sentences plus 3,318 years in prison.聽
Over a small cup of dark roast, Brauchler discusses his disappointment over the single juror holdout, sleepless nights of strategy, and an embarrassing nickname the jurors came up with when they couldn鈥檛 remember what to call him.
THE FORMAL SENTENCING
CU News Corps聽鈥 Formal sentencing starts Monday, the 24th of August, almost seven months to the day to when jury selection began. 聽Why is this sentencing different from what we鈥檝e already heard?
George Brauchler聽鈥 First off, you heard a very truncated and limited presentation of the impact of those murders on those people. 聽The judge made it clear that you don鈥檛 get the mirror image of what (the defense) got with (James Holmes). They put on 34 witnesses to talk about poor little mass murderer and how he loved his dog and how he was a renaissance student at age 7. In contrast, we got to put on one family member per murder victim in that final phase. 聽What never got covered in that final phase were the attempted murder victims. They are entitled by law to address the court as to appropriate sentencing.
CU聽鈥 What can we expect?
Brauchler聽鈥 My guess is we鈥檝e got 150-200 victims. It鈥檚 hard to guess who at the last moment is going to be willing and able to come forward and talk. Some could provide written statements to the judge. Some will come forward and read their statements. I think we鈥檒l be done in hmm鈥 ( he looks up and counts) three days. It will be tough.
Each one of these victims is a separate case in and of itself. We prosecute individual murder convictions all of the time. This is 82 named victims wrapped into one trial. We could have charged individual attempted murder cases for every single victim in theaters 9 and 8. But we didn鈥檛 do that.
CU聽鈥 (Holmes鈥) 3,318聽years on top of 12 consecutive life sentences is still life in prison. 聽People are out there saying 鈥淲hy are we doing this? We already know he鈥檚 going to prison for the rest of his life鈥︹
Brauchler聽鈥 It would be the biggest sentence in the history of the state of Colorado. But candidly, does it matter? Still, we鈥檙e doing this because: 聽1. There has to be formal sentencing and 2. The victims have a constitutional right to address the court. Even though we know he鈥檚 going away for every moment of his life, it鈥檚 not fair to cut them off.
THE DEFENDANT AND HIS FAMILY
Brauchler聽鈥 I do feel for the defendant鈥檚 parents. They didn鈥檛 know this was gonna happen. But the聽guy murdered 12 on his way to murdering hundreds.
CU聽鈥 For 65 days, he didn鈥檛 cry. 聽He didn鈥檛 express any emotion except to stare straight ahead despite the showing of the autopsy photos and gut-wrenching testimony from victims and first responders鈥
Brauchler聽鈥 We saw the 鈥済ame-face鈥 too. This guy was different outside the presence of the jury and when the cameras were off.聽He鈥檇 laugh. He鈥檇 chuckle. He鈥檇 turn to his council and they鈥檇 have short conversations. But man when the jury was coming in, this guy would put on his game face, and that鈥檚 what America saw.
CU聽鈥 And you鈥檝e 聽been talking to some of the jurors since the final decision. Did they get that? That鈥檚 all they saw too. Did they understand what was going on when they weren鈥檛 in the courtroom?
Brauchler聽鈥 Some of them speculated that that might have been the case. One juror said he noticed that the defendant stared straight ahead. Although they did notice that when things were on the screen that were him, or his handiwork at the apartment, they all mentioned the fact that he was glued to the screen for that.
Some jurors also said that it creeped them out that one of the defense attorneys would sit there and just stare at them and then openly wept for anything to do with the defendant; but, didn鈥檛 shed a single tear during the compelling victim stuff. 聽They thought that that was not just weird, but they were put off with it.
THE RESPONSIBILITY OF GOING FOR DEATH
CU聽鈥 Do you regret putting Colorado taxpayers through the trial knowing you could have had the same outcome at the start?
Brauchler聽鈥 I still believe that death is the appropriate sentence for what this guy did. But the system disagreed, and even if it was by one juror I respect that outcome. I believe in the system. But that doesn鈥檛 change my mind as to what justice was.
CU聽鈥 You鈥檝e revealed what the prosecution has spent on the trial 鈥 at least 1.5 聽million dollars. Why don鈥檛 we get to hear what the public defenders spent on this trial? They spent public money just like you did.
Brauchler聽鈥 It鈥檚 a completely legitimate question for the public to ask, 鈥淲hat did the death penalty cost in this case?鈥 We鈥檙e never going to get to know that because a couple of years ago, the Supreme Court of the state of Colorado interpreted an open records act law that is applicable to all of government to not apply to them. 聽And because the public defender鈥檚 office sits under the judiciary, they now say, 鈥淲e鈥檙e exempt from these open records act requests and we鈥檙e not going to provide any financial information to the public. We鈥檙e not going to provide any information about experts.鈥 And so the public will not get to know and thus not get to scrutinize the amount of taxpayer dollars wasted by the public defenders鈥 office in the pursuit of whatever outcome they felt was right in this case or any other.
We know that they spent hundreds聽of thousands of taxpayer dollars on experts that never came into the courtroom and never opened their mouths in any setting.
CU聽鈥 Why?
Brauchler聽鈥 They made certain tactical decisions. There are four experts I know of that they endorsed that had two effects. 聽We had to end up endorsing experts to respond to them. That cost taxpayers money. And then when they don鈥檛 call them, we don鈥檛 call ours. Two of the experts they were going to call were going to say in essence that the Zoloft made him do it. So we had to endorse experts who were going to come in and say 鈥楾hat鈥檚 cuckoo for Cocoa Puffs.鈥
CU聽鈥 But he had quit taking the Zoloft way before the crime.
Braucher聽鈥 Yes! In May! The also endorsed an expert who had never come in, never read the reports, but he makes a living traveling around the country testifying based on statistics and numbers and studies that this guy presents no risk of future dangerousness. That expert? Tons of money.聽(Editor鈥檚 note: this expert was never used.)聽There was another guy out of Atlanta who was gonna come in and say, 鈥淵ep, schizophrenia and it鈥檚 bad.鈥 I talked to him on the phone and he revealed he was billing a discounted rate of $400 per hour and he had billed up to this point about 250 hours. He traveled to Colorado twice. He met with the defendant three hours at a time. His job was to go through reports and listen to the other experts. So I asked him over the phone, 鈥淲hat were you going to say that was different than what Dr. Gur said?鈥 He goes, 鈥淣ot much.鈥 That guy charged $100,000 up to that point and the public defenders decided not to call him.
CU聽鈥 Didn鈥檛 you have those kinds of experts too? People whom you didn鈥檛 call?
Brauchler聽鈥 Yes and no. Some of the experts we retained were responses to what they did. 聽Like the Zoloft expert. The other two experts we had early on were Dr. Phil Resnick and Dr. Chris Mahanee. They didn鈥檛 end up testifying in the trial, but they did take the stand in the week long psychiatric evaluation and they remained to consult with us during the trial.
REGRETS?
CU聽鈥 Is there anything you would have one differently?
Brauchler聽鈥 I just feel like it depends on which side you鈥檙e on. If 聽you鈥檙e on the side of anti-death penalty, you conclude the defense did just what it was supposed to do. It found that one juror and they nailed it.
From our perspective, it was just uncontrollable bad luck in some ways. I鈥檝e gone back over notes, I鈥檝e reviewed all of the evidence and the jurors that have spoken to have told us, 鈥淵ou guys put on a great case. There鈥檚 nothing you could have done鈥 WE were surprised at the hold out juror.鈥 They said this juror had never raised any of the issues that came out at the end during any other phase of the deliberations. They were frustrated as well. It is what it is. That鈥檚 the way the system works. You just need one.
From our standpoint I don鈥檛 think any of the evidence could have come out 聽for us any better than it did. And frankly, I don鈥檛 think any of the defense鈥檚 evidence could have come out any less effective than it did, but for one juror. And that鈥檚 all they needed.
CU聽鈥 What about the two 鈥榳afflers鈥 Juror 17 talked about when she spoke with the press?
Brauchler聽鈥 What we鈥檝e discovered from the other jurors is that 鈥榳affler鈥 may be too generous a term.聽These were people who were heavily leaning toward death but they wanted to continue to deliberate and talk about it. And I imagine those deliberations would have continued but for the fact that one of the jurors said, 鈥淗ey, I鈥檓 done. I鈥檓 for life. Can鈥檛 move forward,鈥 and they decided to call it when they did.
CU聽鈥 When it came back as quickly as it did, were you convinced they would decide for death?
Brauchler聽鈥 No. I was not convinced because they asked for the crime scene video. Earlier, I had told them if they had any doubts to go back and look at crime scene video to remind them of what that guy did.
I thought, 鈥淥kay, it either worked or didn鈥檛.鈥 And then it didn鈥檛鈥.
CU聽鈥 鈥淭hat guy鈥 as you call him has never expressed remorse. In the 22 hours of psychiatric videos he did express regret, but he鈥檚 never said he was sorry. Do 聽you think he will speak at the sentencing?
Brauchler聽鈥 He obviously has the right to address the court at his own sentencing. Not the obligation. I don鈥檛 know if it would matter. Do you think that anybody would believe him? If this guy stands up and says, 鈥淚鈥檓 sorry for what I did,鈥 would anybody believe him at this point? I wouldn鈥檛.
His statements about what happened are those attorney-sounding coached terms like 鈥淚 regret that this had to happen.鈥 Well, that鈥檚 not responsibility. That鈥檚 not only what you did. My opinion is it would be hollow.
CU聽鈥 You have said that you do think the defendant has a mental illness.
Brauchler聽鈥 I think he鈥檚 got a mental illness. I don鈥檛 know what that mental illness is, but there鈥檚 no doubt he thinks differently than you or I do and thankfully most of the rest of the world. It鈥檚 interesting to note that when the first DSM聽(Editor鈥檚 note: Diagnostic and Statistical Manual of Mental Disorders)聽came out, it had 60 diagnosable afflictions. The one that came out two years ago that we relied upon heavily in this case has 400. Are people getting more mentally ill or are we just coming up with ways to diagnose aberrant behavior and diagnose away evil? One thing is clear about this guy: Mental illness and evil are not mutually exclusive. Could he have a mental illness and still make evil decisions knowing they鈥檙e evil? The jury said unequivocally and very quickly: Absolutely he could.
THE JURY
CU聽鈥 Have you spoken with all of the 17 jurors?
Brauchler聽鈥 We鈥檝e sat down with some of the jurors. We have not spoken with the lone holdout. The ones we鈥檝e spoken with reached out to us. We did not pursue them. We鈥檙e talking to them to help us understand what went right and what went wrong. They said it聽wasn鈥檛 even a close call.
They鈥檙e anxious to talk about this too. I hope they feel comfortable talking to you.聽To tell the public what it was like to be on this jury.聽The great story to tell is from the jurors.
This jury worked together well, they talked through things even up until the end. They were surprised about the holdout juror. They did not see it coming. The juror that held out ultimately revealed that position very close to when they sent out the note to the judge that said, 鈥淲e鈥檝e signed the verdict forms.鈥
CU聽鈥 Veronica Moser-Sullivan鈥檚 grandparents indicated there was a 聽plant in the jury. Do you think this was her plan all along?
Brauchler聽鈥 I鈥檓 not going to believe that until there鈥檚 evidence to the contrary. I don鈥檛 want to presume that this system and this case was corrupted. I believe this system is designed to allow one person to upend the justice apple cart.聽Even though the outcome wasn鈥檛 what I wanted, I respect the hell out of these jurors. I hope they tell their story.
CU聽鈥 Where there any light moments when you spoke with the jurors?
Brauchler聽鈥 We asked them if they had nicknames for us after all of that time they spent in that courtroom. They didn鈥檛 know who I was at first, so they called me 鈥淢r. Broccoli.鈥
PERSONAL LIFE DURING TRIAL
CU聽鈥 You have said that you rarely slept more than four hours a night. 聽How was it going to home, and turning off the trial to pay attention to your four little kids?
Brauchler聽鈥 Four that I know of鈥.my wife hates it when I say that. But the weird timing is the verdict came back on my brother鈥檚 birthday. The Friday before my daughter started school. The boys are back in school now.
Yes, I鈥檓 bummed that I missed seven months of my kids鈥 lives other than seeing them at night. I鈥檓 bummed by that. But I can make up for that.
But what鈥檚 the true sacrifice? The families of these victims are never going to see these people on earth again. And that is something that is not lost on me.