Aurora Theater Shooting

James Holmes case: Hearing scheduled for tomorrow delayed

Tomorrow's scheduled hearing in the case of accused Aurora theater shooter James Holmes has been postponed until Tuesday, June 4. The purpose of the hearing is so the judge can advise Holmes about "the effect and consequences" of entering an insanity plea. Once the judge has done so, he'll decide whether to allow Holmes to change his plea from not guilty to not guilty by reason of insanity, as Holmes's lawyers requested.

Prosecutors want to discuss another issue, too: a notebook Holmes mailed to his psychiatrist.

Authorities discovered the notebook in the University of Colorado Anschutz Medical Campus mail room three days after the July 20 shooting. It was inside a package addressed to Dr. Lynne Fenton, a CU professor and psychiatrist who had seen Holmes when he was a neuroscience student there. In June, a month before the shooting, Fenton reportedly warned police of Holmes's "homicidal statements" and threatening behavior.

On July 25, Fox News published a story quoting unnamed law enforcement officials as saying that the notebook contained details about how Holmes "was going to kill people." The identity of those sources has since become an issue, as Holmes's attorneys have sought to find out who violated a gag order in the case and "leaked" that information to Fox News. In December, they questioned several officers, all of whom denied speaking to Fox News. They also subpoenaed the reporter who wrote the story, Jana Winter. She has thus far not been forced to take the stand to reveal her sources, but she has been ordered to return to court on August 19. If she refuses to testify, she could face jail time.

Since the notebook was discovered, prosecutors have argued that its contents are not protected by doctor-patient privilege and should be admissible in court. Holmes's defense attorneys, however, have consistently argued that the notebook is privileged.

In September, prosecutors dropped their request for immediate access to the notebook, explaining that state law says any doctor-patient privilege that exists between Holmes and Fenton would be waived if Holmes chose to pursue an insanity plea. If and when that happens, prosecutors said in September, the notebook will become important evidence.

In a motion filed today (and on view below), Holmes's attorneys asked to delay tomorrow's hearing in order to have "adequate time to digest" an order issued yesterday by Judge Carlos Samour rejecting their arguments that the state's insanity-plea laws are unconstitutional. In a separate motion (also seen here), prosecutors did not object. However, they requested that the parties also discuss "the issue of the waiver of privilege relating to the contents of the package sent to Dr. Fenton" at the June 4 hearing.

In an order shared here as well, Samour granted the postponement and wrote that he is "inclined to grant the People's request to add the wavier issue to the June 4 hearing." He has given Holmes's attorneys until tomorrow to file an objection.

Motion to Postpone Advisement Hearing Until June 4, 2013

Prosecutors' Response to Defense Motion to Postpone Advisement

Order Regarding Defendant's Motion to Postpone Advisement

More from our Aurora Theater Shooting archive: "Aurora theater shooting: Judge rules that insanity plea laws are constitutional."

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