Associated Press, Published September 20 2012
UPDATED: Colo. theater shooting suspect in court, this time without red hair
Holmes appeared more animated during the hearing. He smiled and glanced around the courtroom, looking at his lawyers and reporters covering the hearing. He appeared to be moving his mouth but not actually talking.
Defense attorneys say Holmes is mentally ill and that the notebook, sent to Dr. Lynne Fenton, shouldn't be released because of doctor-patient privilege. Fenton last saw Holmes professionally on June 11 before seeing him again in court on Aug. 30.
Prosecutors argued that the notebook and its contents are fair game. He planned to be dead or in prison after the shooting rampage at an opening night showing of “The Dark Night Rises,” they said, and had no plans to undergo therapy.
But Deputy District Attorney Rich Orman said even if prosecutors convinced the judge the notebook isn't protected, defense attorneys would likely appeal the decision.
“We still think we have good and compelling evidence that the notebook should not be privileged,” Orman said, adding that because of possible delays, “we're not asking to look at it.”
If Holmes’ mental health becomes an issue in the case, Orman said Holmes would have to waive privilege and prosecutors likely would gain access to the notebook, which remains in the custody of the court.
Arapahoe County District Judge William B. Sylvester approved a procedure for Holmes’ defense team to examine the notebook, which includes having a police officer present in the room.
“His notebook, his sketches, his drawings, everything should be made public so we can learn from it and prevent this from happening again,” said Greg Medek, of Aurora, whose daughter Micayla, 23, died in the shooting. “He's just putting on a show. I don't think he's crazy. He's just evil.”
Holmes has been charged with 142 counts, including murder and attempted murder, stemming from the July 20 attack at an Aurora theater that killed 12 and wounded 58 others. Judge Sylvester on Thursday approved prosecutors’ request to add 10 additional attempted murder charges and amend 17 others. Documents released Thursday show names were changed or corrected on some charges.
The hearing was cut short by the prosecution's decision not to seek the notebook, which purportedly contains descriptions of a violent attack.
Former Denver prosecutor Karen Steinhauser said prosecutors want the notebook to bolster their case that the shooting was deliberately planned and carried out by a sane person.
But should Holmes plead insanity, prosecutors would have the right to materials, including the notebook, which the examining psychiatrist would have used to form a professional opinion about Holmes’ sanity.
If Holmes is considered mentally ill, but competent to stand trial, the notebook could remain off limits to the prosecution.
Steinhauser also said prosecutors might be able to gain access to the notebook through an “implied waiver” of privilege should Holmes talk about its contents to inmates or jail guards.
“They (prosecutors) believe they will ultimately have access to that notebook,” said Steinhauser, who is also a law professor at the University of Denver. “They want to keep this case moving.”
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