A defense attorney implied in court Thursday that Aurora theater shooting suspect James Holmes unsuccessfully tried to call a psychiatrist nine minutes before the attack started.
The question was raised during a hearing in Arapahoe County court as prosecutors and defense attorneys battled over whether Holmes had an ongoing confidential doctor-patient relationship. Such a legally privileged relationship could allow the defense to block prosecutors from admitting as trial evidence a notebook that Holmes mailed to the psychiatrist hours before the July 20 shooting.
News reports have said the notebook contains Holmes' plans for the theater attack, including drawings.
Dr. Lynn Fenton, a University of Colorado at Denver psychiatrist, testified that her doctor-patient relationship with Holmes was terminated on June 11, more than a month before the rampage that killed 12 people and wounded 58.
Defense attorney Tamara Brady later asked Fenton about a phone number contained in a report that the psychiatrist wrote the day she said their doctor-patient relationship ended.
Fenton explained that it was a phone number for an operator at the University of Colorado Hospital that patients can call to reach her after hours.
"Do you know if James Holmes called that number nine minutes before the shooting started?" Brady asked.
Sounding surprised, Fenton said she didn't know if the call was placed.
Prosecutors are arguing that the doctor-patient privilege ended when Fenton stopped treating Holmes on June 11. But the defense counters that if Holmes' tried to call Fenton and mailed her a package containing the notebook on the night of the attack, he still considered her his doctor.
Prosecutor Rich Orman said: "He planned to be dead or in custody or on the run when that package was received. There was no expectation of a therapeutic relationship or privilege after that."
Prosecutors noted that Holmes had posted the comment "Will you visit me in prison?" on his profile at the dating website, AdultFriendFinder.com
But the defense responded that even prison inmates suffer from mental illness and need to treatment from psychiatrists.
Fenton testified that she spoke to campus police officer Lynn Whitten about a patient on June 11. She declined to say if that patient was Holmes.
Asked why she would contact police about a patient, Dr. Fenton responded: Id only do so if I was very concerned.
Fenton also testified she had learned that Holmes access to the University was revoked on June 12, when she again spoke to a campus police officer.
Experts tell 7NEWS that Fenton's actions broke doctor-patient confidentiality.
Psychiatrists who are not related to the case told CALL7 Investigators that once a doctor breaks doctor-patient confidentiality it generally means they can no longer treat that patient.
Thursday's testimony also covered electronic medical records completed by Dr. Fenton. She wrote a four-page summary of her meeting with Holmes on Julne11, but left blank a section designated for the treatment plan.
Dr. Fenton also testified that on July 22, she received a voicemail from an investigator for the public defender notifying her that the package had been sent to her work address, addressed to her, from James Holmes. In that same voice mail, they requested that she intercept the package and send back to the defense for Mr. Holmes.
Legal analyst Jay Tiftickjian tells 7NEWS he believes Chief Judge William Sylvester will decide to review the package privately before ruling if attorneys will have access. Tiftickjian also says that if the defense decides to plead incompetency or insanity, the material in the package will likely become available to the prosecution.
The hearing about whether the package is protected by doctor-patient confidentiality ended Thursday without a decision by Judge William Sylvester. He continued the hearing to Sept. 20, when additional witnesses will testify. They include an investigator who obtained records about Holmes from AdultFriendFinder.com and Match.com.
7NEWS learned Wednesday that prosecutors won access to education records Homes accumulated while a student at the CU Anschutz Campus, although it's unclear exactly what records.
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