Judge denies prosecution's motion to block defense witnesses at James Holmes hearing

AURORA, Colo. - A judge has denied a secretive motion from the lawyers prosecuting James Holmes and, in doing so, revealed the content of the request.

The motion was originally filed under seal by the prosecution and known as "P-35." The content of the motion was unknown until Thursday, because lawyers approached the judge to discuss it in hushed voices during Wednesday's hearing so nobody else could hear.

According to the court order, posted online Thursday, the prosecution had requested the judge "quash [the] defendant's subpoenas" and "preclude [the] defendant from calling witnesses at the" preliminary hearing.

The preliminary hearing, scheduled to start Monday, is when the prosecution will present evidence to show the court that the charges against James Holmes should go to trial. Holmes is facing 166 charges in connection with the shooting that killed 12 and injured 70 others in a crowded Aurora movie theater on July 20.

The document shows that the prosecution argued the defense does not have the right to call the witnesses for the preliminary hearing and that they are using the subpoenas as a form of discovery. The prosecution described that use as "improper."

Although the document doesn't specify who the defense had subpoenaed, witnesses for the state are not required to interview with Holmes' attorneys outside of this hearing.

"Prosecution witnesses do not have to talk to the defense at other times, so this may be the only opportunity to talk to these witnesses," said attorney Dan Recht, who's tracking the case.

The document shows that the defense argued the witnesses were subpoenaed to "rebut, impeach, contradict or clarify testimony from government witnesses, particularly on the issue of the Defendant's mental state."

18th Judicial District Chief Judge William Sylvester denied the prosecution's motion, writing that the "defendant has made a showing that the subpoenaed witnesses could potentially provide testimony at the preliminary/proof evident hearing that may be relevant to the issues of probable cause of proof evident presumption."

Sylvester added that he will rule on objections made by either side during the hearing itself.

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