Problems With Models in Mass-Murder Trial

DENVER (CN) - Two large-scale models of the theaters in the 2012 Aurora movie massacre were damaged in shipping and should be excluded as evidence, accused killer James Holmes' attorneys say in a court filing.

Holmes' public defenders filed the motion Friday arguing that there should be a hearing to discuss whether the models, made by the FBI, should be used in Holmes' trial.

Holmes is pleading not guilty by reason of insanity to more than 160 criminal counts, including murder, for the killing of 12 people and wounding of dozens at the midnight premiere of a Batman movie in an Aurora Century 16 movie theater in July 2012.

Prosecutors have indicated that they will seek the death penalty.

According to the Motion to Preclude Expert Testimony, the FBI made models of theaters eight and nine, where the shootings took place, to help gain a better understanding of what happened. But something happened to the models while they were on their way to FBI Denver headquarters.

As explained in further detail below, defense counsel have learned that members of the Federal Bureau of Investigation (FBI) Laboratory Division Operational Projects Unit, led by Visual Information Specialist Bryan Holliday, have recreated theaters eight and nine of the Century 16 movie theater. The FBI team did this by creating a large scale model of the inside and outside of theater nine along with a smaller portion of theater eight. This large model serves to recreate and simulate the physical environment of both theaters," the 8-page motion states.

"Visual Information Specialist Bryan Holiday is employed by the Federal Bureau of Investigation (FBI) Laboratory Division of the Operational Projects Unit. Relying on data collected by the FBI response team, with input and/or work by Visual Information Specialists Ray Rozycki, William McPherson, Robert Thomas and Jacob Cabelli, Mr. Holiday created this large scale reconstruction of both theaters. This reconstruction took over two months to complete.

"Once the large scale physical model was completed, it was damaged when shipped across the country. The model now has 'scale issues' with small details both inside and outside the theater."

Holmes' attorneys claim that prosecutors knew about the problems with the models but did not mention they were going to use them at hearing in January

"The prosecution never amended its response to D-106 upon the completion of the model and never mentioned the model during the January 30, 2014 hearing. Until the defense was able to get full discovery on the model and had an opportunity to actually view the model in person, counsel could not fully assess whether filing a motion to preclude such evidence was necessary, because they were unable to determine what the purpose of the model and its intended use was," the motion states.

"Having viewed the model, and in anticipation that the prosecution is likely to use this recreation at trial, Mr. Holmes now requests a pretrial order precluding the physical model from use at trial. In the alternative he requests a hearing pursuant to CRE 702, 403, due process, and People v. Shreck, 22 P.3d 69 (Colo. 2001) so that this Court may make specific findings on the reliability and relevance of this physical model, the qualifications of the individuals who created this physical model, and whether the use of this model at trial would be more prejudicial that probative."

Arapahoe County Judge Carlos Samour has not indicated when he will rule on the motion.

Holmes' trial is expected to begin in the fall.

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