CENTENNIAL — Defense attorneys in the Aurora movie theater murder case plan to take their effort to subpoena a Fox News reporter all the way to the U.S. Supreme Court.

Last year, New York's highest court ruled that a state law there protects journalists from having to reveal their sources and quashed a subpoena for reporter Jana Winter, who is based in New York. Defense attorneys want to find out who leaked information to Winter about a notebook that gunman James Holmes mailed to his psychiatrist.

Brett Mills
Brett Mills, front, an FBI crime scene expert, leaves the courtroom for a hearing for Aurora theater shooting suspect James Holmes at district court in Centennial on Friday Jan. 31, 2014. (AP | Ed Andrieski)

At the end of a hearing in the murder case Friday, Arapahoe County District Court Judge Carlos Samour asked the defense whether it would petition the U.S. Supreme Court to review the issue.

"It's my understanding they are going to seek a petition," defense attorney Tamara Brady said.

A gag order prevented her from answering questions after the hearing about what she meant.

University of Denver law professor Justin Marceau said the Supreme Court can take a case only if there's an issue related to the U.S. Constitution or other federal laws.

"It's not immediately clear what the federal hook is," he said.

The announcement punctuated a day in which the dryly scientific testimony of two FBI lab specialists belied the violence they described.

The two helped create a three-dimensional scan of the theater, part of a massive undertaking to track the flight of every bullet fired during one of the worst mass shootings in American history. The purpose of Friday's hearing was to determine whether their analyses were credible enough to be admitted at trial as expert testimony. Samour will rule on the issue later.

FBI forensic examiner Brett Mills testified that he found 238 bullet holes or impact marks inside the theater.

Robert Holmes
James Holmes' father, Robert Holmes, leaves a hearing for his son at district court in Centennial on Friday Jan. 31, 2014. (AP | Ed Andrieski)

"The majority of the shots we saw going into the seats were indicative of high-velocity rounds," Mills said in explaining why single bullets created multiple holes.

Mills testified that a trajectory analysis of the bullet holes pointed to most of the shots coming from the front of the theater, near the exit door that detectives say Holmes entered through. Defense attorneys, who want to exclude the evidence from trial, attempted to chip away at that analysis, noting the trajectory of two bullet holes pointed to the ceiling. But Mills said many bullets likely changed course after striking "intervening objects."

"When you're talking about 'intervening objects,' " prosecutor Karen Pearson later asked Mills, "those are people, right?"

"That's correct," Mills replied.
