Heavily redacted Aurora movie theater shooting case document references McVeigh case

Oklahoma City Bomber put to death in 2001

DENVER - Attorneys for the movie theater shooting suspect repeatedly reference the Timothy McVeigh death penalty case in a newly released document.

Decided in 1996 in United States District Court in Colorado, the Oklahoma City bombing case is referenced in regard to court guidance on handling testimony during the sentencing phase, if the theater shooting suspect were to be convicted. Defense attorneys included the references in an 11-page filing submitted last week.

The filing from accused shooter James Holmes' attorneys is dated July 3, but the defense team originally asked for the document to be kept from the public. District Judge Court Carlos Samour partially overruled their request, ordering the document be released with more than two pages of redactions where the motion references proposed testimony that was already determined to be secret until revealed at trial. Samour's order and the defense document were posted Monday morning.

In the paperwork, the defense quotes a June 19 court order requiring the prosecution to deliver "a Good faith, realistic list of witnesses it actually intends to call at any capital sentencing hearing."

According to the defense's summary, almost 4,000 witnesses were originally endorsed by the prosecution, a list that did not distinguish between trial and penalty phases. Later disclosures brought the number down to 565 and then to 483 witnesses.

Still, the defense says they do not know which of those witnesses would be called at the penalty phase.

In the first references to the McVeigh case, Holmes' attorneys use the precedent to advise caution about allowing "victim impact testimony" in the sentencing phase.

"Especially in a case of this magnitude, victim impact evidence easily has the capacity to distract the jury from its task of making a 'reasoned moral response when imposing sentence upon a defendant convicted of a capital offense' and to allow 'emotion to overwhelm reason,'" the defense writes.

The document goes through several other case precedents as the attorneys argue for more disclosures from the prosecution and the opportunity to edit the types of testimony scheduled.

In the second reference to the McVeigh case, the defense says that Colorado has "almost nonexistent" case law about victim impact testimony. Therefore, they argue that Samour should take some guidance from other jurisdictions and specifically the various cases cited by the defense.

Then, on the eighth page, a series of seven redacted paragraphs, a list and two redacted footnotes begin. This is the "proposed testimony" that Samour agreed to keep secret in his order.

Immediately following them, the defense again references the McVeigh case, quoting Samour's court saying that case will likely be a valid reference in decisions on what victim impact evidence is admissible in this case.

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