Update below: Prosecutors in the case of James Holmes decided to drop their request for immediate access to the notebook the accused Aurora theater shooter sent to Dr. Lynne Fenton, who'd acted as his psychiatrist.
But prosecutor Rich Orman said at a hearing held this morning that he thinks it's likely the prosecution will eventually gain access to the notebook.
In explaining the prosecutors' decision, Orman referenced Colorado statute 16-8-103.6, entitled "Waiver of privilege." The statute states that any defendant who pleads not guilty for reason of insanity waives any privilege that might exist between him and his doctor. Here's the first portion of the statute:
A defendant who places his or her mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, or disclosing witnesses who may provide evidence concerning the defendant's mental condition during a sentencing hearing held pursuant to section 18-1.3-1201 or 18-1.3-1302, C.R.S., waives any claim of confidentiality or privilege as to communications made by the defendant to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial, hearing on the issue of such mental condition, or sentencing hearing conducted pursuant to section 18-1.3-1201 or 18-1.3-1302, C.R.S. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.
At present, prosecutors think the best course of action is for the notebook to remain with the court, but that Holmes's defense attorneys should be allowed to view and photograph it under police supervision. Orman said that if Holmes waives doctor-patient privilege in the future, the notebook will become important evidence, and the prosecution would want to test it. That process would include swabbing it for DNA, testing it for fingerprints and scanning for indented writing.
Holmes attended today's session. He looked much different than he has at previous hearings. His bushy technicolor hair has been cropped short and reverted to it's natural brown.
In addition to the discussion about the notebook, the hearing also addressed a previous motion by the defense to sanction the prosecution for claiming in court documents that Holmes had been banned from the Anschutz Medical Campus, which he had attended, and that his key card had been revoked due to threats. "There is no evidence to support that statement," said defense attorney Daniel King. He added that because of the media attention on the case, these claims had "lasting and extenuating effects," and he asked Judge William Sylvester for permission to release a statement refuting them.
King didn't specify what kind of sanction the defense thought would be appropriate. Meanwhile, the prosecution said briefly that evidence presented in discovery supported the statements made. Judge Sylvester didn't rule on the sanctions request.
Also mentioned were the possibility of prosecutors adding or amending counts in the case, which currently number 142. However, there was no discussion about what these counts might entail. The defense did not object to this request.
The next hearing in the Holmes case was set for 9 a.m. October 11. It is expected to deal with the readiness of the prosecution and the defense to move forward with a preliminary hearing now scheduled for November 13, or if a continuance might be requested.
Update, 12:09 p.m. September 20: Prosecutors said they still believe the notebook is not privileged, but that continuing to debate it would delay the case. Orman said he "did a lot of looking" and "this factual circumstance has never arisen anywhere" in the United States. "The question then becomes, do we want this to be a test case?" Orman said, adding that the prosecutors do not.
Orman laid out a procedure for the defense to follow when examining the notebook. He said prosecutors would like a police officer to be in the room, standing close enough to observe the process but far enough away that he wouldn't be able to read the notebook's contents. He asked that the defense place the notebook on a piece of butcher paper and wear gloves and surgical masks to prevent contamination.
He also suggested that the defense photograph the notebook rather than photocopy it to minimize handling.
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In addition, the sides discussed records from the University of Colorado, including e-mails subpoenaed by prosecutors. The defense is concerned the e-mails might contain correspondence between Holmes and Fenton, which they maintain is privileged. The court requested that CU review the e-mails and remove any privileged information.
Prosecutors also addressed a request to fingerprint Holmes and collect his DNA for investigative purposes. Holmes's defense attorneys had objected, prosecutors said, because his DNA was already taken. Prosecutors argued that the previous sample was for a database and not for investigative purposes.
More from our Aurora Theater Shooting archive: "James Holmes defense accuses prosecutors of reckless disregard for the truth."