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Theater shooting survivor Josh Nowlan says though he is very religious, he’s not opposed to the gunman receiving death in this case.  “On to the next phase,” he said Monday.

By Kelsey Ray
CU News Corps

CENTENNIAL, Colo. — James Holmes is still eligible for the death penalty, a jury determined Monday.

After three hours of deliberation, all 12 jurors have determined that the mitigating factors of the case, including Holmes’ mental illness, normal childhood and relationships with family and friends, do NOT outweigh the aggravating factors of his crime. During the next phase of the sentencing trial, each juror must make the individual, moral decision of whether to sentence Holmes to death. 

“When does mitigation outweigh aggravation?” defense attorney Tamara Brady asked jurors during her closing arguments Thursday. “When the mitigation is the cause of the aggravation. The mental illness…the psychosis is what caused James Holmes to shoot the people in the Century 16 theater.”

Brady encouraged jurors not to drag out the trial unnecessarily, urging them to speak up now if they don’t think they will be able to sentence Holmes to death. Monday’s verdict shows that not a single juror did so.

In  case like this, that’s not uncommon at this stage, says defense attorney David Lane.

“Jurors will frequently say, “Yes, the crime was so horrendous that there could be nothing worse—the aggravation outweighs the mitigation,” he said.

But Holmes’ mental illness may still save his life in the next phase.

“A number of jurors might feel, in their own personal judgments, that it would be wrong to sentence a mentally ill person to death,” Lane said.

Former prosecutor Bob Grant disagrees. “I think it’s odds on that they will find a death penalty verdict,” he said. To Grant, who prosecuted Colorado’s last case to lead to an execution, the best argument in Holmes’ defense is one his attorneys failed to make.

“I don’t think they’ve made the right argument, and that argument is that society could have prevented this,” he said.

“I think they were just banking on the sympathy factor.”

The defense is unlikely to present any more evidence during Phase 3, Grant said. Jurors can expect to hear more emotional testimony from shooting victims about how the crime has impacted their lives.

Court will resume Tuesday at 10 a.m.