Death penalty is sought against James Holmes, but governor stands in the way

Crosses stand along a street in Aurora, Colo., on July 20 to honor victims of the 2012 theater massacre and to mark its third anniversary. The penalty phase of the James E. Holmes trial begins July 22.

July 22, 2015 4 AM PT

When the jury found James E. Holmes guilty, Marcus Weaver cried. For his friend Rebecca Wingo, who died beside him in the Aurora, Colo., multiplex. For the dozens of victims in the 2012 rampage during a midnight showing of “The Dark Knight Rises.” For the families of the dead and wounded. Then he cautioned that last week’s verdict “is just a stepping stone” on the path to justice.

The next step, Weaver hoped, would be the death penalty. But even if the jury decides to sentence Holmes to death in the penalty phase of his trial, which begins Wednesday, there are some questions about whether the sentence will be imposed. In the time since the Aurora shooting case got underway, Gov. John Hickenlooper has made it his policy that no one in Colorado will be executed as long as he is in office.

“My hope is that [Hickenlooper] remembers all the people who were in court today,” said Weaver, who was also shot. “All the names that were read, all the counts that were read, and takes that moratorium off the death penalty so that we can truly have justice for the victims and the families.”

Juries across the U.S. continue to hand down death sentences, and prosecutors continue to seek them. But the effective moratorium in Colorado — no capital punishment can be carried out unless the governor signs the death warrant — is part of a political retreat that is gaining momentum. The number of U.S. executions has dropped dramatically since 1999, along with the number of death sentences handed down by juries.

Governors in four states, including Hickenlooper, have declared that they will not sign death warrants during their terms, citing the uneven way the punishment is carried out. This year, for the first time since these policies were adopted in Oregon, Colorado, Washington and Pennsylvania, major capital trials are taking place in two of those states that are testing juries’ willingness to carry out the ultimate punishment.

“What’s the role of these reprieves? I don’t think there’s an independent effect, but it’s part of an overall drift away from the death penalty,” said Michael Radelet, a University of Colorado sociology professor who has studied the punishment for 35 years.

Although a gubernatorial moratorium will undoubtedly spur debate about a critically important issue, death penalty critics worry that the policies ultimately could end up changing nothing. Once the governors leave office, their replacements could decide to go back to signing death warrants. Anyone whose execution was on hold could again be sent to the death chamber.

The fact that the death penalty is still very much up for debate in America was made clear in June, with a U.S. Supreme Court ruling allowing states such as Oklahoma and Florida to continue using a controversial cocktail of drugs to carry out executions. But in a surprising dissent, two liberal justices declared the death penalty to be “unfair, cruel and unusual,” suggesting the door could be opening, if only slightly, on a new constitutional assault.

California has by far the largest death row in America, with 743 condemned inmates. Although prosecutors continue to secure capital convictions on average twice a month, only 13 prisoners have been put to death in the last 39 years. All executions have been on hold since 2006 because of litigation over the state’s three-drug method.

In addition, a federal court judge ruled in 2014 that the state’s death penalty system violates the U.S. Constitution’s ban on cruel and unusual punishment because it leaves inmates with “complete uncertainty as to when, or even whether,” they will be executed. The state is appealing. Hearings before a federal appeals court are set for August.

In Washington state, 15 months after Gov. Jay Inslee imposed a death penalty moratorium, a Seattle jury in May refused to sentence Joseph McEnroe to death for killing six of his then-girlfriend’s relatives on Christmas Eve 2007. The victims spanned three generations of Michele Anderson’s family, including a 5-year-old girl and her 3-year-old brother. Anderson, also charged in the killings, goes on trial in September.

The Holmes case is the first death penalty trial in Colorado since Hickenlooper announced in 2013 that he would grant an “indefinite reprieve” to Nathan Dunlap, who killed four people at a suburban Denver Chuck E. Cheese’s pizza restaurant in 1993 and was sentenced to death three years later.

The reprieve was granted as Dunlap’s execution date neared and will last as long as the Democrat remains in office. Hickenlooper, who campaigned in 2010 as a death penalty supporter, has since said he is against capital punishment.

The political pushback was swift.

Moments after the governor announced Dunlap’s reprieve from the rotunda of the Capitol in Denver, Arapahoe County Dist. Atty. George Brauchler denounced Hickenlooper from the Capitol steps. Brauchler called Dunlap’s execution “a no-brainer,” according to the Denver Post, and said the governor refused “to make any hard decision today.... This is inaction. This is shrugging. This is not justice.”

Brauchler is the same district attorney who said he would seek the death penalty against Holmes. He also turned down Holmes’ offer to plead guilty in exchange for life in prison without a chance of parole, and he is leading the prosecution case against the gunman.

Still, a sitting governor’s ability to veto a death penalty appears to be absolute in Colorado. And though many argue that such moratoriums are political posturing with no lasting effect, others say such gubernatorial declarations are a force for change.

“I think it’s impactful when the governor of your state says your state should never be involved in killing anyone,” said Craig Silverman, a former Denver chief deputy district attorney. “However, in the Holmes case we have jurors who are all death qualified, meaning they have committed to following Colorado law, which includes capital punishment, but we have a governor who is not.”

Attorneys in the McEnroe trial were concerned enough about the effect of Inslee’s moratorium that prospective jurors were asked about the governor’s action when they filled out lengthy questionnaires during jury selection.

Question 74: “Would anything about this moratorium affect your ability to sit as a juror in this case?” Question 75: “Do you agree that there should be a moratorium on executions in the state of Washington?”

But it was the defense that feared the moratorium’s effect on a jury

Leo Hamaji said he and McEnroe’s other lawyers were concerned that Inslee’s action would “absolve” jurors who decided to sentence a defendant to death, that they would think, “If we vote death, it won’t happen because of the moratorium.”

The defense attorneys needn’t have worried. A death sentence requires a unanimous jury, but McEnroe’s panel split 8 to 4 in favor of death.

“As to the individual jurors and whether that made a difference in the deliberations, I don’t know,” Hamaji said. “But I think people understood after the question that the moratorium is only there as long as the governor is governor.”

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Times staff writer Paige St. John contributed to this report.