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On the eve of the Aurora theater gunman’s 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’ Carol McKinley to explain what’s ahead.  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 “this guy.” He’s referring to the defendant, James Holmes. 

By the time it’s over, the convicted theater shooter could  receive as many as  12 consecutive life sentences plus 3,318 years in prison. 

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’t remember what to call him.

THE FORMAL SENTENCING

CU News Corps – Formal sentencing starts Monday, the 24th of August, almost seven months to the day to when jury selection began.  Why is this sentencing different from what we’ve already heard?

George Brauchler – First off, you heard a very truncated and limited presentation of the impact of those murders on those people.  The judge made it clear that you don’t 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.  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 – What can we expect?

Brauchler – My guess is we’ve got 150-200 victims. It’s 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’ll be done in hmm… ( 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’t do that.

CU – (Holmes’) 3,318 years on top of 12 consecutive life sentences is still life in prison.  People are out there saying “Why are we doing this? We already know he’s going to prison for the rest of his life…”

Brauchler – It would be the biggest sentence in the history of the state of Colorado. But candidly, does it matter? Still, we’re doing this because:  1. There has to be formal sentencing and 2. The victims have a constitutional right to address the court. Even though we know he’s going away for every moment of his life, it’s not fair to cut them off.

THE DEFENDANT AND HIS FAMILY

Brauchler – I do feel for the defendant’s parents. They didn’t know this was gonna happen. But the guy murdered 12 on his way to murdering hundreds.

CU – For 65 days, he didn’t cry.  He didn’t express any emotion except to stare straight ahead despite the showing of the autopsy photos and gut-wrenching testimony from victims and first responders…

Brauchler – We saw the “game-face” too. This guy was different outside the presence of the jury and when the cameras were off. He’d laugh. He’d chuckle. He’d turn to his council and they’d have short conversations. But man when the jury was coming in, this guy would put on his game face, and that’s what America saw.

CU – And you’ve  been talking to some of the jurors since the final decision. Did they get that? That’s all they saw too. Did they understand what was going on when they weren’t in the courtroom?

Brauchler – 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’t shed a single tear during the compelling victim stuff.  They thought that that was not just weird, but they were put off with it.

THE RESPONSIBILITY OF GOING FOR DEATH

CU – Do you regret putting Colorado taxpayers through the trial knowing you could have had the same outcome at the start?

Brauchler – 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’t change my mind as to what justice was.

CU – You’ve revealed what the prosecution has spent on the trial – at least 1.5  million dollars. Why don’t we get to hear what the public defenders spent on this trial? They spent public money just like you did.

Brauchler – It’s a completely legitimate question for the public to ask, “What did the death penalty cost in this case?” We’re 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.  And because the public defender’s office sits under the judiciary, they now say, “We’re exempt from these open records act requests and we’re not going to provide any financial information to the public. We’re not going to provide any information about experts.” 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’ office in the pursuit of whatever outcome they felt was right in this case or any other.

We know that they spent hundreds of thousands of taxpayer dollars on experts that never came into the courtroom and never opened their mouths in any setting.

CU – Why?

Brauchler – They made certain tactical decisions. There are four experts I know of that they endorsed that had two effects.  We had to end up endorsing experts to respond to them. That cost taxpayers money. And then when they don’t call them, we don’t 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 ‘That’s cuckoo for Cocoa Puffs.’

CU – But he had quit taking the Zoloft way before the crime.

Braucher – 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. (Editor’s note: this expert was never used.) There was another guy out of Atlanta who was gonna come in and say, “Yep, schizophrenia and it’s bad.” 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, “What were you going to say that was different than what Dr. Gur said?” He goes, “Not much.” That guy charged $100,000 up to that point and the public defenders decided not to call him.

CU – Didn’t you have those kinds of experts too? People whom you didn’t call?

Brauchler – Yes and no. Some of the experts we retained were responses to what they did.  Like the Zoloft expert. The other two experts we had early on were Dr. Phil Resnick and Dr. Chris Mahanee. They didn’t 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 – Is there anything you would have one differently?

Brauchler – I just feel like it depends on which side you’re on. If  you’re 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’ve gone back over notes, I’ve reviewed all of the evidence and the jurors that have spoken to have told us, “You guys put on a great case. There’s nothing you could have done… WE were surprised at the hold out juror.” 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’s the way the system works. You just need one.

From our standpoint I don’t think any of the evidence could have come out  for us any better than it did. And frankly, I don’t think any of the defense’s evidence could have come out any less effective than it did, but for one juror. And that’s all they needed.

CU – What about the two ‘wafflers’ Juror 17 talked about when she spoke with the press?

Brauchler – What we’ve discovered from the other jurors is that ‘waffler’ may be too generous a term. 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, “Hey, I’m done. I’m for life. Can’t move forward,” and they decided to call it when they did.

CU – When it came back as quickly as it did, were you convinced they would decide for death?

Brauchler – 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, “Okay, it either worked or didn’t.” And then it didn’t….

CU – “That guy” as you call him has never expressed remorse. In the 22 hours of psychiatric videos he did express regret, but he’s never said he was sorry. Do  you think he will speak at the sentencing?

Brauchler – He obviously has the right to address the court at his own sentencing. Not the obligation. I don’t know if it would matter. Do you think that anybody would believe him? If this guy stands up and says, “I’m sorry for what I did,” would anybody believe him at this point? I wouldn’t.

His statements about what happened are those attorney-sounding coached terms like “I regret that this had to happen.” Well, that’s not responsibility. That’s not only what you did. My opinion is it would be hollow.

CU – You have said that you do think the defendant has a mental illness.

Brauchler – I think he’s got a mental illness. I don’t know what that mental illness is, but there’s no doubt he thinks differently than you or I do and thankfully most of the rest of the world. It’s interesting to note that when the first DSM (Editor’s note: Diagnostic and Statistical Manual of Mental Disorders) 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’re evil? The jury said unequivocally and very quickly: Absolutely he could.

THE JURY

CU – Have you spoken with all of the 17 jurors?

Brauchler – We’ve sat down with some of the jurors. We have not spoken with the lone holdout. The ones we’ve spoken with reached out to us. We did not pursue them. We’re talking to them to help us understand what went right and what went wrong. They said it wasn’t even a close call.

They’re anxious to talk about this too. I hope they feel comfortable talking to you. To tell the public what it was like to be on this jury. 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, “We’ve signed the verdict forms.”

CU – Veronica Moser-Sullivan’s grandparents indicated there was a  plant in the jury. Do you think this was her plan all along?

Brauchler – I’m not going to believe that until there’s evidence to the contrary. I don’t 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. Even though the outcome wasn’t what I wanted, I respect the hell out of these jurors. I hope they tell their story.

CU – Where there any light moments when you spoke with the jurors?

Brauchler – We asked them if they had nicknames for us after all of that time they spent in that courtroom. They didn’t know who I was at first, so they called me “Mr. Broccoli.”

PERSONAL LIFE DURING TRIAL

CU – You have said that you rarely slept more than four hours a night.  How was it going to home, and turning off the trial to pay attention to your four little kids?

Brauchler – Four that I know of….my wife hates it when I say that. But the weird timing is the verdict came back on my brother’s birthday. The Friday before my daughter started school. The boys are back in school now.

Yes, I’m bummed that I missed seven months of my kids’ lives other than seeing them at night. I’m bummed by that. But I can make up for that.

But what’s 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.