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Judge To Determine Whether To Bring Suspected Theater Gunman To Trial

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A sketch of one of the photos found on James Holmes' iPhone presented as evidence in the preliminary hearing. (credit: Bill Robles)

A sketch of one of the photos found on James Holmes’ iPhone presented as evidence in the preliminary hearing. (credit: Bill Robles)

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CENTENNIAL, Colo. (CBS4)- A status hearing only is scheduled for Friday morning at the Arapahoe County Justice Center in which the judge will announce whether there is enough evidence to continue with a trial for the man suspected of opening fire in a crowded theater.

The preliminary hearing ended Wednesday. It is designed to allow state District Judge William Sylvester to determine whether prosecutors’ case is strong enough to put suspected gunman James Holmes on trial. Holmes faces more than 160 counts of murder and attempted murder.

CBS4 Legal Analyst Karen Steinhauser said it is very likely the case will go to trial.

“The threshold is so low for probable cause determination so I believe the the judge will find probable cause as to all of the counts that have been charged and also will make a finding of proof evident presumption great, meaning that the defendant will remain in custody without bond being set,” said Steinhauser on the CBS4 Morning News on Thursday morning.

Sylvester’s decision is likely to be announced Friday morning and if as expected he orders Holmes to stand trial, the next step will be for Holmes to enter a plea.

However that arraignment will be scheduled for a different day. Holmes’ attorneys filed papers Thursday afternoon saying he was not ready to be arraigned. They’re asking Judge William Sylvester to consider the hearing as only a routine pretrial hearing.

The defense lawyers did not explain why they want the delay.

Holmes’ lawyers haven’t said if he will plead not guilty by reason of insanity, but since his arrest outside the theater in the Denver suburb of Aurora immediately after the shootings, they have portrayed him as a man with serious mental problems prone to bizarre behavior.

During the preliminary hearing, police officers who took the stand described a hellish scene inside the theater on July 20, when 12 people were shot to death before their families and friends’ eyes and scores of others were wounded amid a din of gunshots, screams and the blaring soundtrack of “The Dark Knight Rises.”

The prosecution also showed a series of photos that investigators said Holmes took of himself hours before the massacre. In one, he glares through black contact lenses, sticking out his tongue, as two locks of his orange-dyed hair curl out on either side of his head like horns.

“I think the prosecution wanted to present not just to the court but also to the public how strong the premeditation and deliberation was in this case. Now again, some of this evidence is going to be used by both sides. The defense can use this evidence to say, ‘This man clearly was insane. This is additional evidence to show that he wasn’t in his right mind.’ I think we’re going to see some of this evidence being used by both sides to try to further their positions,” said Steinhauser.

Holmes’ lawyers called no witnesses and cross-examined only a few of those summoned by prosecutors during the hearing. But they pointedly raised the issue of Holmes’ sanity at strategic moments, possibly foreshadowing a defense that some believe is his best hope to avoid the death penalty.

“I think what the defense did was to get permission in the beginning to be able to call two witnesses if they decided to do so. It’s very unusual for defense attorneys to put on evidence anyway because it’s the prosecution’s burden. So the defense may have felt they got all of the evidence that they needed in this case through cross examination. Their position was the issue of insanity was not one for a preliminary hearing and their feeling may have been, ‘We don’t need to do anything more at this time’ which is essentially what they said,” said Steinhauser.

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