Holmes' attorneys say sheriff's release of new mug shot violates pre-trial publicity order

Defense: Holmes photo may harm fair trial

CENTENNIAL, Colo. - Attorneys for the man accused of committing the Aurora theater shootings, claim that the Arapahoe County Sheriff's Office "leaked" a new mug shot of James Holmes to the news media in violation of a judge's gag order in the case.

Meanwhile, defense attorneys continue to seek sanctions against law enforcement, saying a review of thousands of government documents in the case support the defenses' claim that law enforcement is the source of news media leaks about a notebook Holmes' mailed to his psychiatrist on the night of the shooting.

In court papers released Wednesday, defense attorneys said the Sheriff's Office released the photo on Sept. 20, the same day Holmes appeared in court with a new, close-cropped haircut. The look was in stark contrast to the wild orange-red hair the suspect had when he was arrested after the July 20 shootings.

In the photo taken at the jail, a bearded Holmes had a wide-eyed, tight-lipped expression.

Holmes' attorneys say the mug shot affects his prospects for a fair trial and they requested a hearing to investigate the circumstances of how the photo was taken and who released it to the news media.

A defense motion said the judge's pre-trial publicity order barred law enforcement from releasing information to the public that "will have a substantial likelihood of materially prejudicing" judicial proceedings.

The defense said the order expressly states that law enforcement officers and agencies "shall not exercise their custodial authority over an accused individual in a manner that is likely to result in … [t]he deliberate exposure of a person in custody for the purpose of photographing…by representatives in the news media."

That part of the gag order appears to bar deputies from parading Holmes in front of news photographers.

The defense motions seek sanctions for the alleged gag-order violation.

Judge William B. Sylvester set a hearing on the complaint for Oct. 11.

In another motion, defense attorneys seek sanctions for the alleged law enforcement leaks to news organizations about a notebook Holmes mailed to his psychiatrist.

News reports citing unnamed law enforcement sources have said Holmes' notebook details his plans for the theater attack, including drawings.

Defense attorneys said the leak violates the judge's gag order and has "seriously jeopardized Mr. Holmes' constitutional rights to a fair trial" by an impartial jury.

The defense says its review of some of the more than 16,000 pages of law enforcement documents produced during discovery "supports the defense's concern that the government was responsible for leaking information about the contents of the package to the media."

The defense motion does not cite specific evidence supporting their claim that law enforcement leaked information about the notebook.

The judge has not ruled on the defense request for sanctions in the notebook leaks.

Holmes faces multiple counts of first-degree murder in the shooting that killed 12 people and wounded 58.