James Holmes hearing: Decision delayed about whether key package is privileged

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Update: The three-and-a-half hour hearing in the James Holmes/Aurora theater shooting case is over -- with no conclusion on a key issue of whether the prosecutors will have access to a package the suspect sent to his psychiatrist, Dr. Lynne Fenton, who was questioned at length today for the first time in the high-profile case.

The case will reconvene on September 20.

At the center of the arguments today, as we noted earlier, are questions about motive and insanity. The prosecution is working on gaining more access to information about Holmes -- including his educational records and details of the package he sent to Fenton -- in the hope of establishing some kind of motive, which would undermine the insanity defense. In response, Holmes' legal team is trying to keep all that information out of the case and today repeatedly argued that psychiatrist-patient privilege protected it.

At the start of the hearing, both sides made arguments about the package in question, which centered on whether Holmes had a professional relationship with Fenton on July 19, before the shooting. The judge's interpretation of this factor will play a big part in determining whether the package is ultimately protected under privilege.

"[Holmes] is the only one that can waive that privilege," Tamara Brady, Holmes' public defender, said at the start of the hearing, later adding, "A mental health provider needs the trust of the patient."

Richard Orman, with the prosecution, argued in his first speech at the hearing that the package did not fall under the privilege rule, since Holmes no longer had a professional relationship with Fenton when he sent the package.

"The [defendant] did not intend for this to be a confidential communication," he said, also noting that if someone sends a Christmas card to a psychiatrist, that wouldn't be protected by privilege, either.

"He intended that Dr. Fenton would know about the bombs in the apartment, the deaths in the movie theater, all of it," he said.

In other words, the prosecution argued, there was no expectation of a continuing therapeutic relationship in the act of sending the package. The defense, however, countered that reaching this conclusion required a large stretch -- and that there is no way to know the intentions of Holmes, who sat quietly during the hearing, never saying a word. And trying to find out more about the package, the defense argued, would violate privilege.

When Fenton was brought in and questioned by Karen Pearson, another prosecutor, the defense objected to nearly every question she was asked, saying each violated privilege -- and Judge William Sylvester consistently made clear that if there were any doubt, Fenton should not feel compelled to comment.

"I do not want to get into privileged information," he said at one point.

On several occasions, Brady raised a hypothetical, saying that even if the professional relationship had been terminated, if Holmes or any patient were to reach out to a former psychiatrist saying they needed help again or wanted medication, for example, the communication would become privileged.

Pearson, though, argued that "it is their [the defense's] burden to establish that there was a privileged relationship."

For her part, Fenton said that the professional relationship between her and Holmes ended on June 11. During her questioning by the prosecution, she also revealed that she had a conversation with CU Police on that day about "a patient" and that she was aware Holmes's CU access card was revoked the following day.

A lot of the questioning directed at Fenton devolved into confusing verbal gymnastics, with the prosecution trying to ask questions in ways that would not violate privilege and prompt defense objections. At one point, Pearson asked Fenton to describe the ways in which a psychiatrist's relationship could be terminated and Fenton gave three examples: The patient could decide he or she doesn't want to come back, the two parties could agree that treatment is no longer needed or the physician could move away or make some other change that would prevent further treatment.

After much questioning, Fenton, who remained calm and emotionless -- giving concise answers and often pausing before speaking -- said that her professional relationship with Holmes ended in one of those three ways, but she would not say which.

After the first fifteen-minute recess, the judge concluded that the professional relationship existed on June 11, and though Fenton said it ended on that day, there was insufficient evidence to conclude that the package didn't fall under the protection of the privilege rule.

In other words, he seemed to be supporting the defense, though the hearing was only about halfway through at that time.

The bottom line for the prosecution, according to Pearson: "If the relationship is terminated, there is no privilege."

Continue reading for more details from the hearing and our original dispatches. In questioning Fenton after the judge made this announcement, Pearson moved on to broader questions that ultimately didn't appear to push the case forward as it relates to the package.

The prosecution, after Fenton was excused, brought in an agent with the law enforcement arm of the Postal Service and an Aurora Police Department official to discuss the actual sending and discovery of the package at CU. Both witnesses ended up being fairly inconsequential and the defense repeatedly argued that they were irrelevant to the question of privilege.

The prosecution also brought in Steve Beggs, an agent with the ATF, to discuss Holmes' purchase of weapons, which the defense argued, and the judge agreed, was irrelevant. The persistence of the prosecution in arguing that Holmes' package could not be considered a professional psychiatric communication prompted a somewhat dramatic hypothetical from the defense, with Brady arguing that in theory the package could have come with a note that said: "I am feeling bad.... Please stop me.... If you get this package, do something.... Help me."

Prosecutors said they planned to bring in someone who could testify about a James Holmes online posting that said "Will you visit me in prison?" and also a detective that could explain exactly what happened on the evening of the shooting, for the record.

As the hearing approached 5 p.m., the judge said it was clear that they needed more time and agreed on September 20.

A bit exacerbated, Judge Sylvester added, "I was hoping we'd have the privilege issue resolved."

Continue reading for original dispatches from the court room today. Update, 5:35 p.m. August 30: The latest hearing in the James Holmes/Aurora theater shooting case has come to an end with the central issue of whether or not prosecutors will get access to a package the suspect sent to his psychiatrist, Dr. Lynne Fenton, unresolved. Judge William Sylvester has scheduled another court session for 9 a.m. on September 20 to tackle the topic again -- but today, he typically supported the defense, which considers the package to be privileged information.

After a second recess, Fenton returned to the stand yet again, prompting Sylvester to joke that her repeated in-and-out trips were part of the court's exercise program. The line drew a laugh from the audience, and once the hearing was over, several reporters said they'd seen Holmes join in with a chuckle.

During Fenton's third stint of testimony, the defense continued to object to questions posed by the prosecution, consistently arguing that the information being sought was privileged because of the doctor-patient relationship between her and Holmes, which she said had ended on June 11.

Fenton was followed to the stand by additional witnesses, including representatives from the ATF, the U.S. Postal Service and the Aurora Police Department. Holmes's public defenders also objected to the questions put to these individuals, asserting that the questions being asked were not relevant to the issue of privilege. Prosecutors countered that they were simply trying to establish whether or not Holmes thought he had a professional relationship with Fenton at the time. In general, Sylvester did not endorse these contentions.

The prosecution noted that among the witnesses who may be called at the September 20 hearing is a person who had an online exchange with Holmes prior to the massacre during which the suspect made a reference to being in prison. This note suggests to prosecutors that Holmes had intent to commit the crime for which he's charged and therefore was not planning to maintain his professional relationship with Fenton.

The hearing lasted three-and-a-half hours, and while Sylvester hasn't definitively established that the prosecutors will never get access to the package at the center of the hearing -- one that may contain a notebook with plans and sketches for the attack on the Aurora Century 16 -- they know it's off-limits for at least the next three weeks.

Update, 4:15 p.m. August 30: Judge William Sylvester has ruled that a package sent on July 19 by accused Aurora theater shooter James Holmes to Dr. Lynne Fenton, who'd cared for him professionally as a psychiatrist, is to be considered privileged information, at least for now. The reason, Sylvester said, is because there is not sufficient evidence at this point to prove the nature of their doctor-patient relationship on that date, even though Fenton has said repeatedly that it ended on June 11.

The case is continuing at this writing. A short time ago, Fenton underwent lengthy questioning from prosecution, during which the defense continued to object to nearly every question, saying it violated privilege.

Under questioning, Fenton revealed that she had been aware that Holmes's access card to the Anschutz Medical Campus, the CU facility where he had previously studied as a member of the neuroscience program, had been revoked. She also noted that she had talked to an officer about a patient back in June.

Fenton also said that she received a July 22 voicemail about the package from a public defendant investigator, who asked that she return it to the defense. She responded by calling her own attorneys.

She was also asked a hypothetical question: If she had received the package after the shooting, would she have opened it? No, she wouldn't have, she answered -- because of the attack.

Original post, 2:53 p.m. August 30: At this writing, the latest hearing in the James Holmes/Aurora theater shooting case is ongoing. But the first part of the session featured significant events, including two appearances by Dr. Lynne Fenton, the psychiatrist who'd been caring for the man accused of killing twelve people and injuring 58 at the Century 16. Judge William Sylvester described the main debate, over when Fenton's doctor-patient relationship with Holmes ended, as a "conundrum."

The importance of this matter pertains to a package Holmes sent to Fenton the day before the July 20 attack and only discovered afterward.

When questioned, Fenton, who left the courtroom once only to be called back again, said she had a professional relationship with Holmes on [correction] June 11, but added that it had been terminated that day.

Does that mean this relationship, and the doctor-patient privilege connected to it, no longer existed on July 19, when the package was sent? That's the argument of the prosecution, which would like to have access to what's inside -- reportedly a notebook that may include sketches and plans related to the massacre. But Holmes's attorneys maintain that doctor-patient privilege still was in effect on July 19, although they contend that they need a closed hearing in order to present evidence proving it.

After Fenton entered the courtroom, she was asked to identify Holmes, and she pointed to him. Otherwise, however, there was no communication, nonverbal or otherwise, between the psychiatrist and the suspect. He has been silent throughout the hearing thus far, not speaking to his attorneys or anyone else. He appears to be alert and wide-eyed, however.

The legal issues raised to date are complex, and Holmes's defense attorneys regularly objected during the conversations between prosecutors and Fenton, claiming any answers she might provide would violate doctor-patient privilege.

At one point, public defender Tamara Brady, representing Holmes, said, "A mental health provider needs the trust of the patient." Speaking about governing statutes, she added, "It is not the intent of the legislature to put that burden on the patient" to figure out whether or not something is privileged. Her view: "All communication between Dr. Fenton and Mr. Holmes is privileged...including the package."

After about an hour, Judge Sylvester called for a fifteen-minute recess. Look for more updates from the courtroom soon.

More from our Aurora Theater Shooting archive: Aurora theater shooting: Is local media ignoring victims and their families?

Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at Sam.Levin@Westword.com.

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