Colorado Public Defender Douglas K. Wilson, who is representing Holmes, filed a motion to suppress the credit union and bank records as evidence arguing that the documents were obtained as a result of an illegal search and seizure.

In court documents filed last week, prosecutors admitted the court order was not signed by a Colorado judge to legally obtain Holmes' credit union records dating back to December 2003. Prosecutors said they are preparing a new affidavit and court order prior to an Oct. 7 hearing on the motion to suppress the bank documents.

Court documents, however, show prosecutors did secure a court order signed by a judge to access Holmes' financial records at USAA, dating back to November 2006.

Nevertheless, the public defender's motion does not argue that Holmes' credit union records should be suppressed because prosecutors failed to have the court order signed by a judge. Instead, the public defender argues the credit union and bank records should be suppressed because there was “lack of probable cause” and “lack of particularity requirements.”

Although the credit union records were obtained without a signed court order, Aurora prosecutors said no new information relevant to the investigation was derived from Holmes' financial records, according to court documents.

Last month, Holmes pleaded not guilty by reason of insanity. Prosecutors are seeking the death penalty.