Cost of Colorado theater shooting case exceeds $5 million months before opening statements

Jason Sickles
Top attorneys in the State of Colorado v. James Holmes. (L-R) Arapahoe County District Attorney George Brauchler, Chief Deputy District Attorney Karen Pearson, Public Defender Chief Trial Deputy Daniel King and Public Defender Chief Trial Deputy Tamara Brady. (Getty Images)

The criminal court case against Colorado theater gunman James Holmes has already absorbed at least $5.5 million in public monies, according to records obtained by Yahoo News.

That’s $2 million more than the estimated average cost of a completed Colorado death penalty trial — and the contentious Holmes proceeding is still months away from opening arguments.

“Keep adding it up, this isn't ending anytime soon,” said Justin Marceau, a professor at the University of Denver Sturm College of Law who has studied the costs of capital murder trials.

Holmes first appeared in court on July 23, 2012, three days after police say he assailed a packed suburban Denver movie theater, killing 12 people and injuring 70, as they were watching a midnight showing of the Batman film “The Dark Knight Rises.”

In the two and a half years since that initial court appearance, primary personnel involved with the case — prosecutors, defense attorneys, the judge, court reporter, trial investigators and victims’ advocates for the district attorney — have been paid approximately $4.5 million.

At $165,756 a year each, lead public defenders Daniel King and Tamara Brady (not shown) are the highest paid in the courtroom. (AP)

A spokeswoman for the Arapahoe County district attorney said only one prosecutor has been dedicated to the Holmes case full time. But legal observers say a proceeding already involving nearly 1,700 motions, orders and hearings — with possibly hundreds of witnesses expected to testify at trial — would require the undivided attention of a team of lawyers.

Other top expenses so far include $463,000 on additional security from July 2012 through the end of 2014. Experts hired by the prosecution have received more than $220,000 to date. More than $90,000 was used to install a closed-circuit television system in the courtroom. It cost $20,000 to print 9,000 juror notices and questionnaires.

Information on the expenditures was derived from figures released under the Colorado Open Records Act by the district attorney, the Colorado Judicial Branch and the Colorado Division of Criminal Justice. The state public defender’s office — Holmes’ taxpayer-funded lawyers — declined to disclose any costs, citing attorney-client privilege and a court order limiting pretrial publicity. But information on pay for key members of the defense team was eventually obtained through the state personnel office.

Even without the public defender releasing its expenses, it’s safe to say they’ve matched the prosecution’s $220,000 on experts, according to Stan Garnett, the district attorney in Boulder County, Colo.

“It’s kind of a nuclear arms race on both sides where you are trying to make sure you’re staying ahead of the latest weapon the other side has come up with,” Garnett said.

Furthermore, the figures turned over to Yahoo News are likely just scratching the surface of the actual amount, legal experts said. Many resources used in a trial are materials and personnel that already exist — or never appear as line items in a budget, like transcript and discovery expenses.

“It's really hard to get your arms around the full costs of these things,” Marceau said. “There are lots of things going on behind the scenes.”

Holmes has pleaded not guilty by reason of insanity — his lawyers say he was in the throes of a psychotic episode at the time. Twice the judge has ordered him to be transferred to a state hospital for testing to determine if he was mentally capable of understanding the crime he committed. A court spokesman said invoices for the exams have not been received.

“Psychiatrists aren’t cheap,” Garnett said. “Mental state is a very complicated issue to sort out … and it’s going to cost a lot on both sides.”

‘Exponential effect’

Garnett has been an outspoken opponent of the death penalty, maintaining that the time and money needed for a trial make it an impractical punishment. In 2013, Marceau co-authored a study which found that on average a death penalty prosecution takes six times longer in court than when a sentence of life without parole is sought.

“Everything has the exponential effect because we want more precision in the death sentence,” Marceau said. “Lots more procedures, lots more experts, lots more costs, lots more time, because those cases get reviewed.”

A sampling of trial expenditures to date and planned allocations. (Yahoo News/Siemond Chan)

Holmes offered to forfeit the costly trial in March 2013 for life in prison without parole if he could avoid the death penalty. Prosecutors, however, strongly rejected any notion of a pending deal, saying the defense had refused to give them the information they wanted to evaluate the plea agreement.

“It is my determination and my intention that in this case, for James Eagan Holmes, justice is death,” Arapahoe County District Attorney George Brauchler said in court.

A handful of Colorado prosecutors, including Brauchler, testified in 2013 against an attempt (which failed) to abolish the state’s death penalty. Longtime El Paso County District Attorney Dan May told lawmakers that estimates on costly death penalty prosecutions were “overblown” because the personnel involved aren’t new hires.

“The cost to my taxpayers wasn't any different in my office,” May testified.

In the Holmes prosecution, Michelle Yi, spokeswoman for the Arapahoe County district attorney, said only one lawyer has worked the case exclusively since the beginning.

“The remaining four attorneys, the two investigators, and one paralegal have had substantial other duties outside the prosecution of this case, so the inclusion of their salaries … should not be taken to represent actual total costs expended on this prosecution,” Yi wrote in an email.

[Photos: The 12 victims who died in the Colorado theater shooting]

Brauchler began his position in 2013 and also has responsibilities as an elected official. As chief prosecutor he will earn $156,000 this year, almost $10,000 less than two of the public defenders trying to spare Holmes’ life.

The district attorney’s office provided a list of nine trials in which Brauchler has appeared as counsel or made arguments while also working the Holmes case. Yi said determining the caseload for others on the prosecution team would be cumbersome and “almost certainly be under-inclusive.” Judge Carlos Samour — currently earning $145,219 a year — previously averaged 250 trials annually, but has been exclusive to Holmes since taking over the case in April 2013, according to a court spokesman.

Holmes is charged with 166 counts of first-degree murder, attempted murder and weapons charges. Opening arguments through sentencing could last four to six months — which itself will cost the court $137,000 to $205,000 in juror pay (the 24, including alternates, earn $50 a day).

With a trial of that magnitude, Garnett said it isn’t possible for the attorneys to be involved in other cases.

“Getting ready for a trial like this would be all-consuming,” he said.

Funding from federal inmates

Not all prosecution, court and security costs will be paid from state and county coffers. About $2 million has come from a Department of Justice grant that assists the victims of extraordinary domestic terrorism. Funds for the program are derived from federal criminal fines, forfeitures and fees collected in U.S. courts and prisons.

There were 421 people in the theater when police said Holmes ambushed it with guns and tear gas. Dozens more patrons and employees were in other parts of the movie complex. The former neuroscience doctoral student also left his Aurora apartment booby-trapped with explosives for first responders. In all, prosecutors say some 1,300 people were directly or indirectly victimized.

“That federal money is well spent,” shooting survivor Marcus Weaver said of a grant being used by prosecutors to assist victims. (Getty Images)

Nearly $1.2 million of the DOJ funds allowed the prosecutor’s office to hire four full-time staffers, including two victims’ advocates and Deputy District Attorney Lisa Teesch-Maguire. Colorado law requires that victims — among other things — be consulted about case developments, assisted in preparing to testify and afforded the opportunity to attend all hearings if they wish.

Marcus Weaver, who survived being shot but lost his friend Rebecca Wingo in the attack, said Teesch-Maguire and her team have been a godsend.

“That federal money is well spent,” he said. “If I called her at 12 o’clock at night she would answer. She’s just that dedicated.”

Weaver said victims and their families receive almost daily updates from the district attorney. About $65,000 from the DOJ was earmarked for supplies and communications equipment, including the ability to send phone alerts and host webinars with up to 1,000 participants.

With the courtroom seating only 110 people, the closed-circuit television was needed so victims could watch from other parts of the courthouse — another expense covered by the federal grant.

Nearly $140,000 of the DOJ money is paying for eight additional deputies to escort survivors to their cars. Five to six officers are usually in the room when court is in session. For key hearings, officers with rifles are perched on top of the courthouse. In a 2012 grant letter, an administrator wrote that security staffing and overtime will cost “in excess of $1 million ... through the duration of this case.”

“I know it's an alarming cost,” Weaver said. “It’s just the cost of justice due to the size of this case.”

As for Holmes, his heavily redacted application for a public defender was approved the same day as the massacre. It was signed by Daniel King, one of his lead attorneys, who currently earns $165,756 and may be eligible for a raise just as the trial gets going. Under state law, Holmes could be ordered to pay a $25 processing fee after the verdict.

Weaver accepts that Holmes deserves his day in court, but the irony isn’t lost on him.

“We're not only victims, but we're paying for his representation,” he said. “We're actually paying for somebody who killed my friend and shot me in my arm.”

Jason Sickles is a reporter for Yahoo News. Follow him on Twitter (@jasonsickles).