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Judge: DA can use Holmes' cellphone as evidence

February 10, 2014
Associated Press

DENVER (AP) — Eerie self-portraits that Colorado theater shooting defendant James Holmes took with his cellphone hours before the attack could be shown to jurors after the judge ruled that prosecutors can use evidence from the phone at his trial.

Other photos on the phone amount to surveillance of the theater taken up to three weeks before the shootings, prosecutors have said.

In a series of rulings made public Monday, Arapahoe County District Judge Carlos A. Samour Jr. also said prosecutors could use evidence from Holmes' bank records, emails and computers. Defense attorneys had argued that the search warrant used to seize the cellphone, along with Holmes' cellphone records, bank records and other evidence, were flawed. The judge disagreed and rejected eight defense motions to suppress the evidence.

The cellphone photos, shown in court last year, included one of Holmes wearing black contact lenses and a black stocking cap, with two tufts of his orange-dyed hair sticking out like a pair of horns.

In another, he held a pistol beneath his face and grinned into the lens. A third showed an assault rifle and shotgun, magazines for ammunition, tactical gear and bags to carry rounds arrayed on a red sheet on a bed.

Police have testified the photos were taken about six hours before the July 20, 2012, shooting, which killed 12 people and injured 70. A rifle and a shotgun were used in the attack.

The photos of the theater were taken on June 29 and later.

Holmes, a 26-year-old former neuroscience graduate student, pleaded not guilty by reason of insanity to more than 160 counts of murder and attempted murder. His attorneys have acknowledged he was the shooter but said he was in the grip of a psychotic episode.

Prosecutors are seeking the death penalty.

Holmes' trial date is up in the air while both sides work their way through dozens of pretrial motions.

Prosecutors could use the cellphone photos, bank records and other evidence to make their case to the jury that Holmes planned the attack. But as dramatic as the photos are, they will likely be less important to the outcome of the case than a mandatory sanity evaluation that Holmes underwent at the state mental hospital last month.

The verdict on Holmes' sanity is up to the jury, and the evaluation will be a key piece of evidence. If jurors decide Holmes was insane, he could not be executed but instead would be committed indefinitely to the state hospital.

The critical conclusions of the evaluation have not been made public, but prosecutors have asked for another by their own experts, saying the doctor who conducted the first one was biased.

Samour has not said when he will rule on the request. He held a four-day hearing on the issue last month that was closed to the public and reporters.

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Follow Dan Elliott at http://twitter.com/DanElliottAP

 
 

 

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