Aurora theater shooting judge dismisses three jurors formisconduct

This Thursday, Jan. 15, 2015 file photo shows a view of the jury box inside Courtroom 201, scene ofthe Aurora theater shooting trial at the Arapahoe County Justice Center in Centennial. (BrennanLinsley, Associated Press)

CENTENNIAL -- The judge in the Aurora movie theater shooting trial kicked three jurors off thepanel on Tuesday after discovering misconduct that brought the case to a nearly day-long standstill.

Judge Carlos Samour Jr. concluded that one of the jurors had seen news reports about the case andshared details with other jurors. Samour released the other two after deciding they hadn't been fullyhonest when questioned about the incident.

Samour has repeatedly told jurors that they cannot read or listen to news reports about the case, forfear of biasing the trial's result.

"Any decision that the jurors make has to come from evidence that they received in the courtroom,"said Denver attorney David Beller, the president of the Colorado Criminal Defense Bar. "Whenthey're receiving information from outside the courtroom, the judge really doesn't have much of achoice but to dismiss them."

The dismissals were the first since the trial began in April, but they did not come close to forcing ado-over. Neither side moved for a mistrial as a result of the misconduct. Even with the dismissals,there remain nine alternates on the jury to go along with 12 main jurors. Only the judge andattorneys know whether the released jurors were originally designated jurors or alternates.

Still, the dismissals injected further tension into a case where the consequences of a mistake growalong with the time spent in court. Compounding that tension, one of the news reports the dismissedjurors discussed involved a Twitter message about the case that Samour scolded Arapahoe CountyDistrict Attorney George Brauchler for sending from the courtroom.

"That's one of the parties giving their editorialized version of what they're seeing," said CliffStricklin, a Denver defense attorney who has also been a judge and prosecutor. "That's exceptionallydangerous."

Samour tells jurors every day that they are not to read news reports or social media posts about thecase, talk about the case with fellow jurors or begin deliberating on a verdict before all the evidenceis presented.

"I know you know them, but you have to follow them," Samour told jurors when giving hisinstructions again before a break on Tuesday. "If even one of you violates them, it can cause seriousproblems."

The misconduct came to light mid-morning when one juror -- a mother of three who serves in the AirForce and is known publicly only by her juror number, No. 673 -- asked to speak to Samour.

Sitting alone in the jury box, she told Samour that she had twice heard another juror talking aboutnews reports on the case. The first came about a week ago, when the juror, No. 872, referenced astory on an unsuccessful motion for a mistrial that the defense made outside the jury's presence. Thesecond came on Monday, when the juror talked about a story on Brauchler's tweet.

Both incidents happened on a patio adjacent to a jurors' lounge, where some jurors often go tosmoke on breaks. No. 673 said that at least two other jurors -- Nos. 495 and 412 -- were also presentduring the incidents and likely heard what was said.

"I'm not curious at all," No. 673 said of the news reports. "I just feel really bad."

The revelation sent Samour and the attorneys scrambling. A 20-minute recess turned into an hourand 20 minutes.

When court resumed, Samour dug into the investigation.

First came Juror No. 495, who said she overheard, "a mention of maybe looking at something on aphone."

Then came No. 412, who said the jurors mostly talk about clothes and shoes, not the trial.

Last came No. 872, who said she took a call from her husband during a break last week and put it onspeaker phone. She said her husband began asking her about Brauchler and telling her about histweet.

"That idiot's tweeting," she quoted her husband as saying.

She said she cut him off.

"There's no excuse for me not telling you," she told Samour. "I don't usually pay attention to myhusband much of the time."

But, after she left the courtroom, Samour told the attorneys he had doubts about her story, notingthat No. 673 had described in much more detail the two news articles she said No. 872 had talkedabout.

"I don't know if we're getting the full story from this particular juror," he said.

He decided to dismiss No. 872 along with No. 412, who Samour said appeared to be holding back inher answers. No. 872, a mother of three, cried when Samour told her she was being released. No.412, a single mother who works in information technology, appeared shocked.

After further investigation, Samour also decided to dismiss No. 495, a woman who cried during juryselection when asked whether she could deliver a death sentence.

"I think it's likely that Juror No. 495 would have heard some of these comments," Samour said.

The defense asked Samour to dismiss No. 673, as well, saying she had been "tainted" by theinformation she learned. But Samour declined, and he told the juror, "You did the right thing, and Ivery much appreciate you doing this."

Though the dismissed jurors will likely face no punishment, they were not allowed to talk with theirfellow jurors afterward, and Samour said they would be escorted out of the building. They were alsotold not to contact the remaining jurors -- many of whom appear to have become friendly over theseven weeks of trial so far -- until after the trial is over.

"The court's primary concern is not fairness to the jurors," Beller said. "It's fairness to the trialprocess."

That trial finally began for the day at 2 p.m. on Tuesday, first with the last bit of testimony by apsychiatrist who interviewed James Holmes and then with a firearms expert who examined the gunsHolmes used inside the Century Aurora 16 theater when he killed 12 people and wounded 70 more.

The day ended with the expert describing each of the 76 spent shell casings found in the theater.

Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or twitter.com/jsteffendp

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