Prosecutors in the Colorado theater shooting case want defendant James Holmes to undergo further evaluation of his sanity, according to court records made public Monday - a development that suggests the first examination might have found he was insane.

The findings of the first evaluation have not been publicly disclosed, but longtime Denver defense attorney Dan Recht said it was highly unlikely prosecutors would ask for further examination if the first found Holmes was sane. Recht is not involved in the case.

Holmes pleaded not guilty by reason of insanity to charges of killing 12 people and injuring 70 at a suburban Denver theater in July 2012. Prosecutors are seeking the death penalty.

Colorado law defines insanity as the inability to tell right from wrong because of a mental disease or defect. An evaluation by the state mental hospital is mandatory for anyone who pleads insanity. Holmes underwent his last summer.

If the doctors who conducted the evaluation concluded Holmes was insane, it would be much harder for prosecutors to persuade a jury to convict him of murder and sentence him to death.

If jurors agreed Holmes was insane, he would be committed indefinitely to the state hospital. If doctors there ever concluded Holmes' sanity had been restored, he could one day be released, but that is considered unlikely.

The request by the district attorney's office for a further examination "is a clear indication that the prosecution is unhappy with the state hospital evaluation," Recht said. "It certainly suggests that the opinion of the state hospital psychiatrists is favorable to the Holmes defense of insanity."

Prosecutors would have to show a good reason for the judge to approve their request, Recht said.

Arapahoe County District Judge Carlos A. Samour Jr., who is handling the Holmes case, has not said when he might rule or hold a hearing.

Details of the motion filed Friday seeking a new evaluation were not made public. Only the title - "Motion for Further Examination Pursuant to C.R.S. 16-18-106(1)" - was disclosed.

It refers to the section of the Colorado Revised Statutes governing sanity evaluations.

Prosecutors asked to have the motion kept secret, and Samour agreed. The judge has imposed a gag order on both sides, forbidding them from discussing the case publicly outside the courtroom.

Holmes is charged with multiple counts of murder and attempted murder. His trial is scheduled for next year, with jury selection set to start in February.

Separately, Samour ruled that prosecutors can use evidence that police found in defendant James Holmes' apartment, which authorities said includes homemade bombs and a calendar with the day of the shootings highlighted.

The ruling, also dated Friday, rejected defense arguments that the apartment search was illegal because it began before police had a warrant.

Prosecutors argued the search was permissible because Holmes told them he had explosives at his apartment, and they didn't have time to wait for a warrant because of the potential danger.

They later did get a warrant.

Prosecutors are fighting to use any evidence to undermine Holmes' insanity claim. They could argue that the calendar and the bombs - which law-enforcement officers say were meant to divert first responders from the theater - show the attack was planned and that Holmes understood the shootings were wrong.

Source: Arizona Daily Star, November 19, 2013