A booking photo of Colorado shooting suspect James Holmes (handout)CENTENNIAL — Prosecutors said in court Thursday they are giving up the fight for a notebook that Aurora theater shooting suspect James Holmes mailed to his psychiatrist before the July 20 massacre, in which 12 were killed and at least 58 were wounded.
Previous reports from anonymous sources say the notebook contained plans for the massacre — information that could be used as evidence to Holmes' state of mind before the attack.
Prosecutors had wanted access to the notebook, while Holmes' defense attorneys said it was privileged communication between Holmes and his psychiatrist and shouldn't be used as evidence.
In the hour-long hearing Thursday morning, lawyers prosecuting the case against Holmes
dropped their battle for the notebook, saying that they would likely get access in the event Holmes pleads not guilty by reason of insanity.Deputy District Attorney Rich Orman also worried that the battle over the notebook would end up in the state Supreme Court, delaying the murder case significantly and make it a test case for future issues of privilege in criminal proceedings.
"These are uncharted legal waters," Orman said. "As far as I can tell, this particular factual circumstance has never arisen before, anywhere."
During his statement, he asked rhetorically if the prosecution wanted to make this case a test case.
"We do not have that burning desire at this time," he said.
But giving up the fight is risky. Defendants who plead guilty by reason of insanity waive privilege, but that does not guarantee prosecutors will be allowed to review the notebook, said former judge Christina Habas, who works for the Keating Wagner Polidori Free law firm and is representing some theater-shooting victims.
"It is very possible," she said, "but it's not 100 percent certain."
In the meantime, the notebook will remain in the court's possession, but the defense team will be able to review it and make copies under court and police supervision.
Holmes appeared in the Arapahoe County courtroom with a freshly shorn head. Gone were the muttonchop sideburns and shock of red-dyed hair.
Thursday's hearing was the continuation of a hearing that ended without resolution last month that was focused on whether the notebook mailed to University of Colorado psychiatrist Lynne Fenton in the days before the shooting is protected by doctor-patient privilege. Holmes' attorneys say it is.
Public defender Dan King asked 18th Judicial District Chief Justice William Sylvester for sanctions against the prosecution, saying Deputy District Attorney Karen
Defense Attorney Daniel King, left, leads the defense team out of the courtroom after a hearing for suspected theater shooter James Holmes in district court in Centennial on Thursday, Sept. 20, 2012. (AP | Ed Andrieski)Pearson had falsely alleged that Holmes had made threats and had been banned from the University of Colorado's Anschutz campus where he was a graduate student."There is not one iota of evidence" to support those allegations, King said.
Holmes was a student in a neuroscience doctorate program on the Anschutz medical campus.
In the weeks before he allegedly opened fire on a sold-out midnight showing of "The Dark Knight Rises," Holmes did poorly on oral exams and had begun withdrawing from the program.
Holmes faces 142 counts — including 24 counts of first-degree murder and 116 counts of attempted first-degree murder, plus one count of possession of an explosive device and one count of sentence enhancement for allegedly committing a crime of violence.
The murder and attempted murder counts represent two counts for each slain and wounded victim — one each of murder or attempted murder after deliberation and one of murder or attempted murder with extreme indifference.
Sylvester allowed the addition of 10 charges against Holmes on Thursday, but the charges were not read in court and details were unavailable because of a gag order in the case.
Much of the hearing was focused on lifting the order that prevents lawyers, law enforcement and the University of Colorado from discussing the case.
Prosecutors said they were open to unsealing the file with the exception of the arrest and search warrant affidavits and certain motions.
Defense lawyers asked that the case remain sealed, at least until a preliminary hearing scheduled for November.
CU lawyers argued to keep the file sealed.
The next hearing in the case is set for Oct. 11, where lawyers will discuss whether they are on track for the preliminary hearing.
