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Holmes death penalty: Decision doesn't rule out plea deal later

Holmes death penalty decision was not a surprise. 'For James Eagan Holmes, justice is death,' the district attorney said. But there are many reasons there could be a plea deal later.

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Since 1977, when Colorado's death penalty was reinstated, the state has executed just one person, and has three people currently on death row. (All the state's death penalty cases have come from the same Arapahoe County jurisdiction where Holmes is being tried.)

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The fact that a full trial would be very lengthy, involve numerous appeals, and the statistical chance that Holmes would ever actually be executed even if he is initially found guilty is a prime reason that prosecutors might be open to a plea deal, says Mr. Recht. Victims' families often want closure and finality, and may not want to see the case drag on.

The second reason for a plea deal is the chance that Holmes could be acquitted if the evidence for mental illness is strong enough. "By not entering into an agreement, the prosecution runs the risk that the jury will find Mr. Holmes not guilty by reason of insanity, and then not subject to the death penalty or any penalty," says Recht.

Going forward, a big factor in prosecutors' decision is likely to be the wishes of the victims and their families, says Steinhauser, noting that those wishes may change over time, as the reality of a lengthy and uncertain trial settles in. 

"As this case progresses, they’ll be seeking and getting more input from victims and victims' families in this case as to what the families want," Steinhauser says. "The district attorney makes the ultimate decision, but they are absolutely going to listen and take into consideration what the people most affected by this case want."

Anecdotal evidence has suggested a range of feelings among families currently. "My original thought was 'thank goodness, I am so glad this is happening,' " Bryan Beard, a friend of one of the Aurora victims, told the Associated Press Monday, after the announcement that prosecutors were seeking the death penalty.

But Pierce O'Farrill, who was shot three times at the theater, had a different view. If the case goes to trial, "all of us victims would be dragged along potentially for years," Mr. O'Farrill, told the AP. "It could be 10 or 15 years before he's executed. I would be in my 40s and I'm planning to have a family, and the thought of having to look back and reliving everything at that point in my life, it would be difficult," he said.

Currently, the trial is scheduled for Aug. 5, but it's unlikely that that will take place. Far more likely are either that a plea deal will be reached, in which prosecutors accept a guilty verdict in exchange for life in prison without the possibility of parole, or that the defense files a not guilty by reason of insanity plea, which would slow the whole process down significantly.

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