Aurora theater shooting defense argues James Holmes is too mentally ill for the death penalty

DENVER - Defense attorneys in the Aurora movie theater shooting case say the gunman is too mentally ill for the death penalty to be constitutional if he is found guilty.

James Holmes has pleaded not guilty by reason of insanity to the July 20, 2012 shooting that killed 12 people and wounded dozens of others. As a result of that plea, he was evaluated at the Colorado Mental Health Institute in Pueblo.

The report about that evaluation and the defense argument about Holmes' mental illness are both being kept secret by the court. The title of the defense's motion, however, was revealed in the case's register of actions.

Published every Friday, this week's "Register of Actions" shows the defense filed the secret motion after the last register was published on Friday, Nov. 8. It was titled, "Motion to strike the death penalty because the state and federal constitutions prohibit the execution of individuals such as Mr. Holmes who suffer from a chronic and serious mental illness."

In other sealed motions filed that same day, the defense also asks the judge to bar or limit several other categories of evidence:

-Findings concerning Holmes' competency to stand trial

-Statements Holmes made during the mental health evaluation

-Evidence of the shooting's impact of victims

Curiously in that last topic, the title of the secret motion includes, "The CMHIP sanity examiner's conclusions render such evidence irrelevant (and) more prejudicial than probative and unconstitutional in this particular capital case."

Of course, while the documents remain secret we cannot know why they say the sanity report would possibly render evidence from the victims irrelevant.

Holmes is due to return to court on Dec. 11, for a hearing about a defense motion to bar testimony concerning crime scene reconstruction evidence like blood spatter analysis and bullet trajectory analysis.