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Many factors go into it. but again, you have to look at the mitagators and aggravators. i'm certain with 17 dead children and him walk handbag a school with these firearms, they will be seeking the death penalty. >> harris: we're talking a lot about mental health. over the years, at times when i've interviewed you, it's come up. we had the pulse shooting in orlando and it's something that continues to come up. i know you have strong thoughts about this. so please share them. >> gosh. harris, thank you for saying that. among the president -- i'm on the president's opioid commission i was extrem...

They used to know. >> the week began with the judge offering james holmes to take the stand. >> will you testify in the phase one. >> yes. >> what is your decision? >> i don't want to testify. >> the judge explained how it works in a death penalty phase. >> aggravation and prosecutors argue that he should be put to death and mitigation and where the family and friends try to sway them. and that is where they hear from the ones that are killed. there were plenty of aggravators qualifying him for the death penalty. >> murdered 12 people in the course of the single criminal episode. >> and the de...

They used to know. >> the week began with the judge offering james holmes to take the stand. >> will you testify in the phase one. >> yes. >> what is your decision? >> i don't want to testify. >> the judge explained how it works in a death penalty phase. >> aggravation and prosecutors argue that he should be put to death and mitigation and where the family and friends try to sway them. and that is where they hear from the ones that are killed. there were plenty of aggravators qualifying him for the death penalty. >> murdered 12 people in the course of the single criminal episode. >> and the de...

>> now, we are not going to ask you to forgive mr. holmes. but we are going to ask for your compassion and your understanding. we're going to ask for your mercy. >> reporter: in referring to the four psychiatrists who testified during trial that holmes suffered from schizophrenia, attorney rebecca higgs said quote we don't kill people for being sick. something the prosecution addressed. >> and yes we'll talk more about mental illness. and in the end, you'll be asked whether or not that outweighs the horror of the aggravators you found. and it will not. >> reporter: if the jury cannot agree on ...

Why he would have engaged in this behavior. it's not reasonable doubt. it's by a preponderance of the evidence. it is more likely than not, 50 5 1 to 49% and in addition to that, ash li, i should point out does it not even have to be unanimous in term of all the jurors. a juror may find a mitigator where another juror doesn't find a mitigator. >> simple majority. >> that makes it a lot easier to get checklists. there are a lot more mitigators than aggravators. >> tar nay nsarnaev's teachers s and cousins love him. that brain damage disabled his father. scratching my head here. dzhokhar was dep...