Defense attorneys for James Holmes begin series of motions asking judge to keep evidence out

ARAPAHOE COUNTY, Colo. - The Aurora movie theater shooting suspect was in court Monday for the first of several scheduled hearings to prepare for his upcoming trial.

James Holmes is charged with fatally shooting 12 people and injuring 70 others in an Aurora movie theater in July 2012.  Prosecutors are seeking the death penalty in the case.

His attorneys have filed numerous motions to suppress evidence from the trial slated to start on Feb. 3.

"Motions to suppress are not often granted and the odds of any of these being granted, I suppose, are also slight," said legal analyst Dan Recht. "Many of them have strong legal arguments."

During the first day of hearings, the University of Colorado and the Colorado Mental Health Institute at Pueblo turned over documents relating to the defendant's mental health. He was treated by a psychiatrist at the University prior to the shooting and was sent to the state hospital after pleading not guilty by reason of insanity to the 166 charges against him.

Holmes' parents and his sister were in court for Monday's hearing.

-- Jury selection --

District Court Judge Carlos Samour also revealed the court's strategy for calling jurors for the trial.  As many as 6,000 potential jurors will get a summons on Jan. 3. The plan involves calling up prospective jurors in groups of 300 until the jury is seated.

Judge Samour said he wants 12 jurors and 12 alternates.

"The last thing we want to do… is to have to declare a mistrial," Samour said, referring to the large number of alternates.

The prosecution requested to have the jurors referred to by number instead of name. The defense did not object but said it would check case law.

-- Jury questionnaire --

The prosecution and defense both provided their own version of the jury questionnaire. The judge will finalize which questions appear.

The prosecution said that many of the questions they submitted were about the potential jurors' backgrounds.

There is likely to be a section titled "Mental illness," according to 7NEWS Reporter Marshall Zelinger, who was in court Monday.

One question that was revealed in court was "Do you have a strong opinion, good or bad, of mental health providers?"

Defense attorney Daniel King argued that getting someone's opinion on mental illness or the death penalty based on background -- "what TV shows they watch or bumper stickers they've read," isn't useful in the 21st century.

-- Online activity --

Attorneys also discussed suppressing information from Holmes' online dating profiles on Adult FriendFinder and Match.com. Prosecutors obtained his online history showing when the accounts were created and accessed. Both profiles included the tagline, "Will you visit me in prison?"

The defense contends that the searches of the website profiles were done in violation of Holmes' rights.

"The burden is on the prosecution to prove what they did was legitimate and met Constitutional scrutiny," said Recht.

A Texas judge ordered Match.com to provide Holmes' records but the information they provided exceeded the scope of the order. 

Any internet usage involving payment to a company results in an expectation of privacy, the defense argued Monday.

The profiles were found after investigators located email addresses in Holmes' iPhone, which was found in his car behind the theater. Defense attorneys are challenging the evidence found in the car, including items, like the iPhone, that led to finding other evidence.

"They call it fruit of the poisonous tree. If the first search is unconstitutional, then all of the fruit of the first search is unconstitutional as well," said Recht.

Deputy District Attorney Rich Ornan said they found out about the online profiles from TMZ and do not intend to introduce into evidence any emails from those sites between the time the crime was committed and when the profiles were taken down.

-- Additional evidence --

Holmes' attorneys also want to suppress evidence found in the search of his apartment, as well as statements Holmes made to police and detectives after being detained and before being read his rights.

"If the judge believes they had these emergency circumstances, the judge will allow the jury to hear the evidence," said Recht.

Prosecutors will call witnesses to prove to the judge that the evidence searches were legal and constitutional.

The hearing was scheduled to last through Wednesday but wrapped up Monday at noon after two hours.

-- Length of trial --

Both sides said they expect the jury selection to take eight weeks, or roughly two-thirds of the scheduled three-month trial.

"Three weeks to try this case is wishful thinking," King said.

"If anyone's going to file a motion to continue [the trial]… I need to know by Jan. 3." Judge Samour said.

"We're not the ones who've endorsed 3,000 witnesses," King replied.

"If you're going to tell this jury we're going to be done in three months," King said. "We better be done in three months."

 

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