The prosecution argument to quash the defense subpoenas:

The People assert that they have standing, as the prosecuting party, to move to quash Defendant's subpoenas for the Witnesses' testimony at the preliminary/proof evident hearing.

The People state that because they will present direct evidence at the preliminary/proof evident hearing, Defendant does not have the right to call the Witnesses, and, thus, the Court should quash Defendant's subpoenas for the Witnesses.

The People also state that Defendant is using the subpoenas to conduct discovery and that such use is improper. Because of this improper use, they ask that the Court quash Defendant's subpoenas for the Witnesses.

The defense argument:

Defendant, on the other hand, states that the People's Motion should be denied because the People have no authority to quash a properly issued subpoena for the attendance of a witness at a hearing. Defendant asserts that objections to aspects of a witness's testimony should be made when a specific question is posed during the preliminary/proof evident hearing, rather than through a motion to quash.

The Judge wrote:

The Compulsory Process Clause of the Sixth Amendment to the United States Constitution serves to allow the defendant to secure witnesses and evidence for in-court presentation. ...The Confrontation Clause guarantees a functional right for opportunity for cross-examination to promote reliability in the truth-finding functions of a criminal trial.

The Colorado Constitution confers on a criminal defendant the right to compel witnesses on his behalf in criminal prosecutions. Colo. Const. art. II, § 16. Additionally, the Colorado Rules of Criminal Procedure grant the prosecution and the defendant the right to subpoena witnesses to compel their attendance and testimony at trial or another hearing. Colo. R. Crim. P. 17. Rule 17 includes the right of the parties to compel attendance of witnesses at "other hearings." ... Generally, "no preliminary showing is ordinarily required to subpoena a witness for trial testimony." ...The plain language of Rule 17 grants Defendant the right to subpoena the Witnesses at the preliminary/proof evident hearing.

...The Court FINDS that Defendant has the power to subpoena the Witnesses for the preliminary/proof evident hearing and that there is no evidence showing the subpoenas were improper or invalid. Thus, the People's Motion to Quash is DENIED.

On the prosecution's motion to preclude the defense from calling witnesses at the hearing:

[Prosecutors argued] Defendant may call the Witnesses only if the prosecution's evidence consists almost entirely of hearsay. The People affirm that they will present substantial direct evidence at the preliminary/proof evident hearing, and, therefore, the Court should preclude Defendant from calling the Witnesses during the hearing.

Defendant states that because of the nature of the preliminary/proof evident hearing, Defendant has a constitutional right and a basic due process right to cross-examine witnesses and present evidence relevant to the issue of probable cause or proof evident presumption great that Defendant committed the crimes charged.

Defendant asserts that he has subpoenaed the Witnesses for the preliminary/proof evident hearing to rebut, impeach, contradict, or clarify testimony from government witnesses, particularly on the issue of Defendant's mental state.

That's where the defense is going. It is trying to save James Holmes' life. Prosecutors have not yet charged the death penalty.

The process:

The preliminary hearing is designed to provide judicial determination that probable cause exists to bind an accused over for trial. ... While "the preliminary hearing provides the defendant with an early opportunity to question the government's case, it is not designed to alter the basic proposition that an accused is entitled to one trial on the merits ofthe charge." ....

The preliminary hearing is a screening device and the prosecution is not required to present all, or even its best, witnesses and evidence. The prosecution has the burden of proof, but the prosecution is given considerable latitude in its presentation of the evidence; the court should view the evidence in the light most favorable to the prosecution, resolving conflicts of evidence in favor of the prosecution.

A defendant "may cross-examine the prosecutor's witnesses and may introduce evidence" at the preliminary hearing. ... The court may curtail this right consistent with the purpose of the preliminary hearing. ...("the Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish"'). But the court cannot curtail a
defendant's cross-examination or presentation of evidence that is relevant to the determination of probable cause.

"The full potential and purpose of the preliminary hearing is only realized when it is utilized as a check on the power of the prosecution."

On the proof evident hearing:

The purpose of a proof evident hearing is to determine whether "proof is evident or presumption great" that a defendant committed the crime charged. Colo. Const. art. II, § 19... If the prosecution meets its burden at the proof evident hearing, the defendant may be held without bail. Colo. Const. art. II, § 19.

The Colorado Constitution "requires the court to determine for itself whether or not the proof is evident or presumption great in a given case."...The trial court may circumscribe a defendant's right to be heard during the proof evident hearing, but the defendant has the right to cross-examine witnesses and present evidence.

...Defendant "may cross-examine the prosecutor's witnesses and may introduce evidence" at the preliminary hearing, ... and Defendant "may be heard in argument, may produce evidence, and [may] make his own statement." While this Court may curtail Defendant's rights consistent with the purpose of the preliminary/proof evident hearing, such determinations are best made at the time of testimony; otherwise, Defendant would be foreclosed from eliciting testimony from the Witnesses that could be relevant and admissible.

The Court ruled:

The Court FINDS that 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 or proof evident presumption great that Defendant committed the crimes charged. Therefore, the Court declines to preclude Defendant from calling the Witnesses at the preliminary/proof evident hearing at this time. ...The Court notes that it will hear and rule as needed on objections made by either party during testimony by any witness at the preliminary/proof evident hearing.

While Holmes' case has become a lightening rod for more gun control laws, it should be remembered he also had more than 30 improvised grenades in his apartment, all booby-trapped.

Holmes' apartment appears to have three types of explosives — jars filled with accelerants, chemicals that would explode when mixed together and more than 30 "improvised grenades," the official said. Oates said Holmes has been preparing the attack for months.

Colorado Governor John Hickenlooper after the Aurora shootings:

“I’m not sure there is any way in a free society to be able” to stop a deranged individual from assembling a deadly arsenal, Governor John Hickenlooper, a Democrat, said today on CNN’s “State of the Union.” If there were no assault weapons available and no this or no that, this guy is going find something, right?” he said. “He’s going to know how to create a bomb.”

Once again, the goal of the defense is to save Holmes' life, thus it will focus on Holmes' mental state -- to the extent the Court allows. Colorado attorney David Lane, a very experienced death penalty lawyer, put it this way:

"Under any scenario, he will spend every day, for the rest of his life, locked up. He's going to die in prison or the state hospital. Those are his only options," said attorney David Lane. "I think the public defenders are taking a position that anything they can do to prevent him from being executed is a step in the right direction."

.... "I'm going out on that limb. I'm saying he's "demonstrably mentally ill.' How do I know that? 'Cause he walked into a movie theater and just started randomly shooting," said Lane. "Everybody hears about this crime; the first thing that pops into their mind is, 'This guy's crazy.'"

Once the judge finds probable cause and binds Holmes over for trial, the battle over Holmes' competency and mental state can begin. The defense can file a motion challenging his competency, and the Court order an examination and then determine if Holmes is competent to stand trial. To be competent, Holmes must be able to understand the nature of the proceedings and assist in his own defense.

Assuming Holmes is found competent, at his arraignment, the defense will almost certainly enter a plea of not guilty by reason of insanity. A mental examination will then be ordered. Planning the shootings does not mean he is sane. As David Lane said:

"Don't confuse intelligence with insanity," said Lane. "You can have meticulous planning and you're operating under a delusion system that is completely not based in reality."

The pertinent statutes are CRS: 16-8.5-103 (Determination of competency to proceed) and C.R.S. 16-8-101.5 (2011) (Insanity.) The definition of "mental disease or defect in Colorado:

(b) "Mental disease or defect" includes only those severely abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality and that are not attributable to the voluntary ingestion of alcohol or any other psychoactive substance but does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

The burden of proof on sanity is on the People:

Every person is presumed to be sane; but, once any evidence of insanity is introduced, the people have the burden of proving sanity beyond a reasonable doubt.

What a not guilty by reason of insanity verdict would mean:

If the trier of fact finds the defendant not guilty by reason of insanity, the court shall commit the defendant to the custody of the department of human services until such time as the defendant is found eligible for release. The executive director of the department of human services shall designate the state facility at which the defendant shall be held for care and psychiatric treatment and may transfer the defendant from one facility to another if in the opinion of the director it is desirable to do so in the interest of the proper care, custody, and treatment of the defendant or the protection of the public or the personnel of the facilities in question.

I outlined both statutes here.

There will be no computers or other electronic devices allowed in either the main courtroom or the overflow room.