In September, prosecutors in the James Holmes case filed a notice in court about a complicated situation they believed they'd fixed. A witness in the case who knew Holmes from the University of Colorado agreed to let police download texts Holmes sent from her iPhone. (The witness's name is redacted from public documents but prosecutors refer to the witness as "her.") But in order to do so, the cops had to download everything on her phone.
"When law enforcement officials met with computer forensic experts to retrieve the text message information," prosecutors wrote in the notice (which is on view below), the computer forensic department told them that "the individual text messages could not be independently isolated and downloaded."
The only way to get them was to download "all of the content of the phone," the notice states -- which included the witness's entire contact list, thousands of text messages that had nothing to do with Holmes, plus photographs and privileged communications between the witness and her own therapist.
"The witness is very concerned about the private information that would be provided to the defense," the notice says. "The witness requested that we redact the irrelevant private and privileged information before providing the contents of her phone to the defense."
So that's what the district attorney's office did, the notice states. Prosecutors turned over 2,275 pages of information from the phone with all "irrelevant" material blacked out. In addition, prosecutors offered to provide an un-redacted copy for the judge or Holmes's defense attorneys to review privately in the judge's chambers.
Holmes's attorneys are asking to do just that. In a recently filed response (and also on view below), they propose that one member of the prosecution and one member of the defense team review the un-redacted materials together. "If both parties agree the material is irrelevant, the material will remain redacted," they wrote.
They also offer to "not share the information acquired with Mr. Holmes."
In its response, the defense seems to argue that prosecutors handled the phone-records situation poorly. "Rather than placing the documents in a sealed envelope and seeking further guidance ... the prosecution continued to read the entirety of (redacted) cellular phone records," they wrote in a document that was redacted before it was made public.
In addition, they allege that Assistant District Attorney Lisa Teesch-Maguire told someone -- likely the witness, though the name is redacted -- that he or she should be "concerned about the defense gaining possession" of the information. "According to (redacted), Ms. Teesch-Maguire told (redacted) that the defense would misuse this information and would harass (redacted) friends and family if they obtained it," Holmes's attorneys wrote.
In a footnote, they allege that Teesch-Maguire "contacted (redacted) without an investigator present to witness the conversation or write a report about it."
The judge has not yet weighed in -- or if he has, his ruling hasn't been made public. The parties are due back in court on Thursday to discuss when to hold a key preliminary hearing originally scheduled for November but now likely delayed until early 2013.
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