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Judge in Colo theater shooting sets hearings on whether Holmes statements can be used in trial

The Associated Press

August 10, 2013 at 12:25AM

DENVER — Lawyers for the man accused in the Colorado theater shooting will get a chance to argue in court that statements James Holmes made to police after his arrest shouldn't be used in his trial, a judge said Friday.

Judge Carlos A. Samour Jr. scheduled hearings in October on defense claims that police violated Holmes' constitutional rights by questioning him without reading him his Miranda rights and after he asked for a lawyer.

Prosecutors argue the questions were permissible because officers were trying to protect the public by determining whether Holmes was armed and had an accomplice.

Holmes is charged with killing 12 people and wounding 70 others during a movie showing in the Denver suburb of Aurora in July 2012. He has pleaded not guilty by reason of insanity, and his lawyers have acknowledged in court filings that Holmes was the gunman.

Prosecutors are seeking the death penalty.

Many details of the exchanges between police and Holmes have been withheld from the public, but testimony and court documents provide a sketchy account.

Police who rushed to the theater said they found Holmes standing beside his car in the theater parking lot, and that he didn't resist when they arrested him.

When officers asked about an accomplice and weapons, Holmes replied he was alone and that he had four guns as well as explosives at his apartment, police testified. Police later defused what they described as potentially deadly booby-traps at the apartment.

After Holmes was taken to a jail, officers read him his Miranda rights and he asked for a lawyer, his attorneys say. Miranda rights, nicknamed after the court case that defined them, are a suspect's right to remain silent and have an attorney present.

The defense argues police should have stopped asking questions then, and statements Holmes made after that shouldn't be allowed in court.

Police said they asked Holmes whether he was sick or uncomfortable, and that Holmes asked them a question at some point, although what he asked has been redacted from court documents.

Prosecutors argue the questions police asked Holmes before they read him his Miranda rights were permissible under a public safety exception, which allows officers to ask questions that tell them whether the public is in danger.

Police questions about Holmes' health and comfort didn't amount to interrogation, prosecutors said. They also said that whatever Holmes told police was voluntary.

Samour also agreed to hold hearings in October on defense motions to bar the use of evidence gathered from Holmes' car, wallet, apartment, computers and phones, as well as Holmes' emails and bank records.

The defense argues the evidence was gathered illegally. Prosecutors dispute that.

Also Friday, Holmes' lawyers told Samour they need two extra weeks past the Aug. 16 deadline to file all their motions pertaining to the death penalty.

They also said they might file other motions after they see the report on Holmes' sanity evaluation. Holmes is expected to get the evaluation this summer, but officials refuse to say whether it's underway.