The jurors who convicted James Holmes of murder in the Colorado theater shooting were taking more time than expected Thursday to decide whether prosecutors passed the first legal test for a death sentence.
Prosecutors said they proved several of the required "aggravating factors" in these murders beyond a reasonable doubt: That Holmes harmed an outsized number of victims when he opened fire at the midnight Batman movie premiere; that he killed a child, and that the attack was particularly heinous.
They said Holmes wanted to murder as many as he could in the audience of more than 400 people but failed to kill more than 12 because his assault rifle jammed.
The defense offered no counter-argument, effectively conceding that at least one factor justifying death was evident in the crime, but jurors went home without a verdict on this point and resumed deliberations Thursday.
Prosecutor Rich Orman on Wednesday showed jurors photos of each person killed and read their names — bringing some of their relatives in the courtroom to tears. Holmes deliberately and cruelly killed all of them, including 6-year-old Veronica Moser-Sullivan who "had four gunshot wounds to her little body," Orman said.
Orman reminded jurors that Holmes threw tear gas and sprayed so much gunfire that even moviegoers hiding behind seats couldn't avoid being hurt.
"The victims were unaware of any danger, watching a movie, in a theater, a place of joy and of safety," he said. "The victims died surrounded by screaming, by pain and by anguish."
Assuming jurors agree that the nature of the crime justifies the death penalty, the defense will lead the next phase, trying to show that his mental illness and other "mitigating factors" make it wrong to execute him.
Jurors would then deliberate for a second time, deciding whether the extent of his mental problems outweighs the lifelong suffering Holmes caused. If so, the trial would end there, with a life sentence instead of the death penalty.
If not, the sentencing will move into a third and final phase, in which victims and their relatives would describe the impacts of Holmes' crimes.
While the jury will decide the murder sentences, Colorado law already establishes the penalties for his convictions on attempted murder and other charges. Holmes wounded 58 people and 12 others were injured in the chaos of the attack.