CENTENNIAL, Colo. — In the Aurora theater shooting trial, one of the only courtroom behaviors more persistent than defendant James Holmes’ eerily interminable chair swiveling is the repeated cry of “objection” from the defense.
Public defenders seek a not guilty verdict for Holmes — who killed 12 and injured 70 when he attacked the Century 16 movie theater on July 20, 2012 — by reason of insanity. They have so far objected to photos of victims’ wounds, witness testimonies they deemed “upsetting,” and even a theater diagram marked in pen with the phrase “bloody victims.”Â
Judge Carlos Samour, Jr. overrules these objections so often that spectators probably wonder why the defense bothers objecting at all. The simple answer, as Judge Samour has reminded the jury at the request of the defense, is that they’re legally required to. But the reason is more complicated.
According to David Beller, president of the Colorado Criminal Defense Bar Association, the dialogue and drama that unfold in the courtroom tell only half the story.
“There are, for all intents and purposes, two trials going on,” he said in an interview.
“The first is the trial in front of the jury,” Beller said. “The second trial that’s going on is that everything is getting written down and recorded for use in an appeal.”
Bob Grant, the now-retired attorney who in 1987 prosecuted Gary Lee Davis, the last man to be executed in Colorado, agreed.
“Basically what the defense is doing is making their record,” he said in an interview.
Everything that happens in the courtroom — every verbal exchange, every piece of evidence admitted and yes, every single objection — is recorded. After the trial, this record will be reviewed by the Colorado Court of Appeals. So although the jury, the defense and everyone  watching knows by now that Judge Samour will overrule most objections, the defense continues to raise them.
“They’re not speaking to the jury,” Beller said. “They’re speaking to the Court of Appeals.”
In his courtroom, Judge Samour gets to decide whether to sustain or overrule an objection. But when the months-long trial concludes, the 22 judges of Colorado’s Court of Appeals will review the entire case, looking for errors. And during this process, evidence that elicited an objection from either side will receive closer scrutiny.
Playing by the rules
The rulebook that governs what is admissible in Colorado courts is called . It’s based on the Federal Rules of Evidence, adopted by the U.S. Supreme Court in 1973, and contains rules on hearsay, witness testimony and the relevance of evidence.
David Beller compared it to a football rulebook: Though the rules are clear, there are situations that make things complicated.
“It’s sort of like a football that lands directly on the line,” he said, admitting that he’s not a sports expert. “Is that a touchdown or not a touchdown? There’s a gray area to all of these rules.”
In the Aurora theater shooting trial, the defense’s objections most commonly cite Rules 401 and 403, both of which define relevance.  For a piece of evidence to be admissible, Rule 401 states, it must be relevant. That’s defined as “having any tendency to make…any fact…more or less probable than it would be without the evidence.”
However, Rule 403 states that evidence that is considered to be prejudicial, confusing, misleading or a waste of time is not always admissible, though it may be relevant. The defense thus must object any time relevance is in question.
“If the defense does not object to this stuff,” Beller said, “There can be an argument down the road that the attorneys were not effective in not objecting.”
It’s the judge’s job to decide whether the relevance outweighs these other qualities.
Judge Samour has demonstrated a tendency to favor relevance. He has repeatedly said that given the nature of the crime Holmes committed, some evidence of the damage he caused — including wounded victims, emotional trauma and blood — is to be expected.
“He has the constitutional right to a fair trial,” Samour told the court. “He doesn’t have the constitutional right to a sanitized trial.”
Beyond a reasonable doubt
According to David Beller, the prosecution is trying to emotionally manipulate the jury when it calls injured victims to the stand, or shows upsetting photographs.
“It’s a legally allowable way for the prosecution to tug at the heartstrings of the jury,” he said. The prosecution promised in its opening statements that the jury would hear from every single victim, and so far, these emotional testimonies have been spread out.
“They are strategically placing them throughout the trial so that the jury always remembers that emotion,” he said.
That, Bob Grant said, may be another reason the defense raises so many objections.
“They’re playing to the jury,” he said. “Their hope is that the jury will resent the fact that the prosecution is doing this.”
It’s worth noting that the jury has seen several graphic photographs that were not shown to spectators or the public.
So why is the prosecution spending so much time reliving the traumatic scene?
This case has never been about whether defendant James Holmes opened fire in a crowded movie theater nearly three years ago. He was arrested immediately after the shooting, wearing protective body armor and harboring explosive devices in his apartment nearby. He never denied the attack.
But it still falls to the prosecution to prove — beyond a reasonable doubt — that Holmes committed the crimes he is being charges with. “Even if it’s not being disputed,” Beller said, “They still have to prove the case.”
According to Grant, it also matters for sentencing. “The impact on the victims is important to both the case in chief — the murder trial — and the penalty phase,” he said. Evidence admitted now remains admitted for the penalty phase.
“The more they show the wonton disregard for life and the number of bullets, the more they show the impact,” Grant said.