James Holmes-should-sit-at-defense-table motion, other newly released documents
A total of 34 motions were made public yesterday in the case of James Holmes, accused of the Aurora theater shooting. Much of the court file remains sealed, but Arapahoe County District Court Judge William Sylvester also released the register of actions, a chronological list of all actions in the case. Westword reviewed the released documents and while they're short on juicy details, they do reveal quite a bit about how the case is progressing.
Holmes's attorneys didn't waste any time in filing their first motions. Public defender Daniel King did so on July 20, the day of the shooting -- without having met Holmes in person. In a document entitled "Motion For Access to and Preservation of Crime Scene," on view below, King wrote, "Mr. Holmes's family has requested that counsel represent him, and counsel anticipates being appointed to represent Mr. Holmes. However, at the time of the filing of this motion, counsel has been prevented from personally meeting Mr. Holmes."
Three days later, Holmes appeared in court for the first time -- with his defense attorneys.
The defense's earliest motions included a request for a gag order, as well as the aforementioned motion asking that the Aurora police preserve the crime scene so the defense team could examine it. Prosecutors agreed to allow them to do so. King also filed a motion asking that law enforcement preserve all other types of evidence, including police notes. Using bold letters in "Motion to Preserve and Produce Evidence," also below, he wrote, "Defense counsel is aware that it is the practice of law enforcement to destroy their notes. Defense counsel requests an order specifically ordering law enforcement agents to preserve all notes in this case." The register of actions confirms that motion was granted.
Judge William Sylvester.
A motion filed by King on July 23, the day of Holmes's first court appearance, asks that the court prohibit law enforcement and prosecutors from attempting to obtain "confidential information" about Holmes. It said Holmes does not consent to releasing his medical, psychological or school records, among others, to law enforcement.
A motion made public earlier noted that Holmes was under psychiatric care, but that reference was later censored from the document. We've included the unredacted version here.
Another motion filed on July 23 asks that Holmes's own expert be present when police test all evidence in order to observe the procedures and results. "Such testing may destroy the existing evidence," King wrote in the "Motion to Allow Confidential Defense Experts to Be Present for Scientific Testing of Evidence," shared here. "For example, bullets in evidence may be fired." Unless Holmes's expert is present, King wrote, "he will have lost any realistic ability to confront the state's evidence as to the procedures performed and the results obtained."
Prosecutors partly disagreed, arguing in a motion that Holmes's expert should only be allowed to observe testing when the tests will destroy the evidence. "The legislature has only provided for the presence of representatives of the defendant in the limited circumstances of destructive testing," prosecutors wrote. The judge is expected to issue a written ruling on the subject but one has not yet been released.
Page down to learn more about the James Holmes case and read the newly released documents. On July 25, Holmes's defense team asked the court to order "the government" to adhere to the gag order. "The government apparently violated that order by disseminating information to the media concerning confidential and privileged communications" between Holmes and someone whose name has been blacked out of the document. Given the timing, it's likely a reference to Holmes's psychiatrist, Dr. Lynne Fenton. Citing a law enforcement source, Fox News reported that Holmes sent a package to Fenton that included a notebook with plans for the attack. The judge granted the motion.
A day later, Holmes's defense attorneys filed a motion asking that he be allowed to sit with them at the defense table. At his first court appearance, he sat in the jury box, as far from the audience as possible. "Counsel need to be able to confer and communicate with Mr. Holmes," defense attorney Tamara Brady wrote in a motion we're sharing as well. Plus, she added, seating him in the jury box "may give those observing the proceedings the incorrect impression that the sheriff or the court has concerns about Mr. Holmes expressing threats or exhibiting dangerous behavior, which would jeopardize Mr. Holmes's right to a fair trial.
"Mr. Holmes's constitutional rights cannot be compromised because other individuals present in the courtroom have expressed a desire to harm him," she continued. The judge granted that motion. While Holmes looks to have been paying attention at recent hearings, he doesn't appear to be participating much.
With regard to the gag order, prosecutors filed a "Motion to Clarify Court Order Re: Motion to Limit Pre-trial Publicity" (it's below) asking that they be allowed to correct inaccurate information in the media. Holmes's attorneys disagreed, arguing that inaccurate reports were "inevitable" but that correcting them by giving more information to the media would be worse. The judge has not yet lifted or loosened the gag order.
The register of actions, the last document below, also reveals that prosecutors are attempting to subpoena Holmes's school records from the University of Colorado, where he was a grad student. The defense objects, and the judge has scheduled debate on the issue for August 23.
But before then, Holmes will be back in court Thursday. Among the issues to be debated is whether a doctor-patient privilege exists between Holmes and Fenton.
Here's the first of the newly released documents.
For more, read our Aurora Theater Shooting archive.
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