Police ordered the deletion of video recordings of James Holmes in jail during the days after his massacre at a cinema in Aurora, Colorado, following a request from the state prosecutors who are seeking to prove that he was sane and should face the death penalty.



A sheriff at the detention facility told officials not to preserve the surveillance footage of Holmes after prosecutors emailed him to say they did not want it held, the sheriff told a court on Tuesday. Despite having asked to review all footage, Holmes’s attorneys were not consulted.

The disclosure emerged as Holmes, 27, appeared at Arapahoe County district court for the first day of jury selection in his long-awaited trial. Further discussion on the fate of the video footage was halted after Judge Carlos Samour ruled that media coverage of the subject might sway some of the 7,000 prospective jurors being screened from Tuesday afternoon.

“What is most important to me is that justice is done,” Samour told the court at one point during the hour-long hearing. “That is what this process is all about. Justice.”

Holmes, who shot dead 12 people and wounded 70 during a midnight screening of The Dark Knight Rises in July 2012, is pleading not guilty due to insanity to more than 160 counts of murder, attempted murder and other crimes. Evidence relating to his behaviour following his attack may prove influential.

Previously confined to a prison jumpsuit, he wore a dark sports jacket, khaki trousers and an untucked blue-and-white striped dress shirt. He was sporting reddish spectacles and a trimmed beard. If convicted, Holmes could face the death penalty. If acquitted, he would be committed to a state mental facility from which he would be unlikely to be released.

Holmes sat in silence, with his hands clasped at his waist, rocking back and forth in his chair as Samour set out the ground rules for what is expected to be an eight-month trial process in all. The defendant had smiled and laughed during a conversation with Tamara Brady, one of his attorneys, before the judge arrived.

He was restrained with a harness hidden under his clothes and anchored to the courtroom floor. His attorneys won an earlier ruling that he need not wear traditional shackles, which they argued would make him appear guilty to jurors. He was handcuffed only before being led out.

Prosecutors in Colorado must prove to jurors that a defendant using an insanity plea was, in fact, sane. Lawyers for Holmes will attempt to show that he was “so diseased or defective in mind”, as state law puts it, that he was “incapable of distinguishing right from wrong”. They said in a previous court filing that Holmes has a “severe mental illness and was in the throes of a psychotic episode” during the attack.

The trial is being held in the town of Centennial, about 14 miles from the Century 16 cinema in Aurora that Holmes attacked about two and a half years ago. From Tuesday afternoon, the first 150 people or so summonsed as potential jurors were completing questionnaires.

After Samour laid out a series of rules for the trial, a brief hearing was held on a request by Holmes’s lawyers to exclude from the trial evidence that they say was only shown to them by prosecutors earlier this month.

­Under-sheriff Louie Perea, who was the sheriff’s department’s bureau chief for detention when Holmes was arrested, confirmed under questioning from Rebekka Higgs, an attorney for Holmes, that he made the order not to preserve the video footage, which he said was collected from the night of Holmes’s detention onwards.

Perea answered “Yes” to a series of questions from Higgs, confirming he had discussed the need to collect footage of Holmes with the district attorney’s office and been copied on an email from Holmes’s attorneys requesting that all video be preserved and that they be allowed to review it.



He confirmed that the jail computer servers erased footage after a period of time and that footage of Holmes’s detention would not be available today. Following a 30 August email from the prosecutors stating that they did not, in fact, want the footage to be held, Perea told records officials that it should not be preserved without consulting Holmes’s attorneys.

White noise was then played over the courtroom while attorneys discussed the video with the judge to shield descriptions of its content from the media and public.

Samour said that the pool of 9,000 people who received summonses for jury duty in the case – the biggest in US judicial history and roughly one in every 50 people in Arapahoe county – had already been reduced to about 7,000 after some were found to be unavailable. All jurors must be willing to impose the death penalty.

The court is to screen 250 of the pool every weekday morning and afternoon except Fridays. Samour said the prospective jurors would be given an 18-page questionnaire of 77 questions, which has not been made public and would take between 45 minutes and two hours to complete. Throughout the trial, jurors will be referred to by numbers and not names to protect their identities.

Holmes’s attorneys and prosecutors will review USB sticks containing daily scans of completed questionnaires, and whittle the pool down to a group of about 120, who will be recalled for questioning. From this group, 12 jurors and 12 alternates are expected to be selected for the trial. Jury selection may last well into the spring.



Rich Orman, a senior deputy district attorney, asked Samour to ensure that graphic images from the shooting site are not broadcast to the public when a live feed from the courtroom is opened to TV channels when the trial begins in earnest.

“There are going to be times when images will be displayed on the screens that victims will not want out there in the world,” said Orman. Requesting a block on photographs of bodies and video recorded at the crime scene, he said: “I think it would mean a lot for the victims in the case for that to be the circumstance.”

Samour asked prosecutors to file a formal motion so that a consortium of media outlets covering the case may respond. The trial continues.

