THE BLOG

Over-Exposed at the Holmes Trial

06/18/2015 02:37 pm ET | Updated Jun 18, 2016

Last month, I wrote about the parents of the Aurora Theater shooter, James Holmes, attending every day of their son's trial. Robert and Arlene Holmes may still be in the courtroom but, since yesterday, other people won't be. Judge Carlos Samour, Jr. dismissed three jurors for violating his repeated instructions "to avoid outside information on James Holmes' death penalty trial and not talk about the case with anyone."

The controversy started when it was reported to the judge that "Juror 872 had heard and discussed news reports about the high profile case at least two times." Apparently, Juror 872 was on a trial break when she took a phone call from her husband on speaker-phone with four other jurors in proximity. Her husband asked about something he saw on Facebook regarding a tweet made during the trial by the main prosecutor in the case, Arapahoe County District Attorney George H. Brauchler. A short discussion ensued; presumably short enough to get everyone back to the courtroom but long enough to get three of them tossed out of the courtroom.

So, the woman had a short conversation with her husband; what's the big deal? The big deal is the sanctity, if you will, of the jury deliberation process. The jurors in this months-long case are told every court day, when they leave for the evening or go on breaks, not to "discuss the case with anyone, not to see or read anything about it." I watched experts on a news show who said jurors must consider only the evidence allowed by the judge in the trial when deliberating. Exposure to outside information could result in contaminated decisions and potential avenues for mistrial or appeal.

This trial is down to 21 jurors/alternates but the magic number is 12; 12 of the 21 will be chosen to make those final, uncontaminated, decisions. At the start of the trial, Judge Samour made sure he had extras because, as one expert put it, "The judge knew that given the attention and the amount of information that's out there, there's a good chance that some jurors are going to disobey him and do what's natural. They've been accustomed to the whole world at their fingertips. It's such an automatic response to try and access the world around them." Good call.

Judge Samour asked why Juror 872 hadn't disclosed the conversation herself and was told, "I just really don't pay attention to my husband most of the time. So it wasn't really important, at that time." She also said, "He knows I'm not supposed to talk about it." She gave a classic who-me? response when confronted with wrong-doing; it's not that big of a deal and I'm not the only one to blame. This time, it didn't work.

When you're talking about something this critical, rules do matter. We're not talking about someone with a full grocery cart using the 12-or-less lane or going 30 MPH in a 25. We're not even talking about using your cell while driving. This jury will decide on justice for bereaved families and ultimately whether James Holmes lives or dies. This is important and the rules do matter. Juror 872 knew the rules and chose to disobey them. I doubt it was the first time. She told the judge, "He was on speaker . . . He asked me if I knew who the lawyer was. I said, 'Why?'" She didn't have to ask him why. She could have said, "I'm not supposed to talk about this!"

When it comes to disobeying rules, Juror 872 isn't alone. That ill-fated conversation was about someone else disobeying rules and tweeting from the courtroom. Attorney Brauchler, who was "scolded" by the judge, said "it was an accident and apologized," explaining he thought he was texting not tweeting. Judge Samour has now prohibited both. Good luck.