James Holmes case: Should law enforcement be punished for releasing strange new mug shot?

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Releasing a second mug shot of accused Aurora theater shooter James Holmes violated the case's gag order, Holmes's attorneys argue in a new motion. A judge has granted their request for a hearing to investigate. The mug shot was "leaked to the media" on September 20, Holmes's attorneys say -- the same day their client appeared in court with a new haircut that traded his unruly dyed-orange locks for a conservative brown-haired buzz cut.

Holmes is charged with opening fire at the July 20 midnight showing of The Dark Knight Rises at a theater in Aurora, killing twelve people and injuring at least 58 others.

The Arapahoe County Sheriff's Office distributed the photo -- which Holmes's attorneys say "has been widely disseminated in the media." At the time, the sheriff's office told Westword that it was distributing the new mug shot on a request basis.

In the motion, which is on view below, Holmes's public defenders say the new booking photo violates the judge's order to limit pre-trial publicity, which says law enforcement agencies shouldn't "exercise their custodial authority" to cause "the deliberate exposure of a person in custody for the purpose of photographing or televising by representatives of the news media."

While that could be read as an order not to parade Holmes in front of the cameras while he's in handcuffs, his attorneys point out that because cameras are not allowed in the courtroom, "the public would not have had access to an image of Mr. Holmes but for this leak." (Cameras are banned, but a sketch artist has been allowed to draw Holmes in court.)

Holmes's attorneys requested a hearing "to investigate the circumstances under which this photograph of Mr. Holmes was taken and its purpose, the party responsible for distributing the photograph to the media, and what sanctions are an appropriate response to this violation." In an order on view below, the judge granted that request and set the hearing for October 11 at 9 a.m., the date of an already scheduled court appearance in the case.

Holmes's attorneys are also seeking sanctions against "the government" for "leaking privileged and confidential information to the media about the contents of a package" that Holmes sent to Dr. Lynne Fenton, a psychiatrist he'd seen when he was a neuroscience student at the University of Colorado. In a motion on view below, they argue that shortly after the judge ordered that no one -- including prosecutors -- view the contents, the media reported what was allegedly inside, "citing unnamed law enforcement sources."

Five days after the attack, Fox News first reported that the package contained a notebook featuring drawings of a gun-wielding stick figure shooting other stick figures.

"The discovery received thus far supports the defense's concern that the government was responsible for leaking information about the contents of the package to the media," Holmes's attorneys wrote. They requested an "evidentiary hearing" on the matter, but the judge has not yet ruled on whether to hold one.

Continue reading to view the documents referenced in this post, and to see a large version of Holmes's original mug shot.

Motion for Evidentiary Hearing to Investigate Violation of Courts Order
Order Re: Motion for Evidentiary Hearing
Motion for Sanctions for Violating This Courts Order

More from our Aurora Theater Shooting archive: "Aurora theater shooting: Fund for victim Farrah Soudani gets busty boost from theCHIVE."

Follow me on Twitter @MelanieAsmar or e-mail me at melanie.asmar@westword.com

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