Prosecutors drop fight to see notebook Holmes mailed to psychiatrist before Aurora theater shooting

DA: In mental health defense notebook is evidence

AURORA, Colo. - Prosecutors have given up their fight to see a notebook that James Holmes mailed to a psychiatrist on the night of the Aurora theater shooting rampage, saying the notebook will automatically become evidence in an anticipated mental health defense.

News reports have said the notebook contains Holmes' plans for the theater attack, including drawings.

Holmes is accused of killing 12 and injuring 58 at a midnight showing of the Batman movie "The Dark Knight Rises" at the Century 16 Theater in Aurora.

Prosecutors made the move during a Thursday morning hearing in Arapahoe county court.

Sitting at a defense table, Holmes had shed his orange-reddish dyed curly hair, appearing with close-cropped brown hair, mutton chops and wearing a red jail jumpsuit and manacles.

Holmes was wide-eyed and blinking and he twitched with a facial tick, 7NEWS reporter Marshall Zelinger reported from the courthouse.  Later Thursday, a new mugshot of Holmes was released by the sheriff's office that showed a wide-eyed Holmes with short hair.

At times, Holmes looked out of the corner of his eye toward victims in the gallery and turned around to look at news reporters at the end of the hearing.

Prosecutors on Aug. 30 suffered a setback in obtaining the notebook when Arapahoe County District Judge William B. Sylvester ruled that they could not disprove a doctor-patient relationship between Holmes and University of Colorado psychiatrist Lynne Fenton.

Defense attorneys say Holmes is mentally ill and sought Fenton's help, so the notebook is protected by doctor-patient privilege. Sylvester rejected prosecutor arguments that a doctor-patient relationship ended June 11, the last time Fenton saw Holmes.

But if Holmes' attorneys pursue a mental health defense, they would waive doctor-patient privilege because the defendant's mental state becomes a central issue at trial.

Prosecutors said another reason they stopped pursuing the notebook is because they could find no U.S. court precedent similar to the evidentiary battle over the notebook.

While prosecutors maintain the notebook is evidence, they said any side that lost a ruling on the notebook as evidence would appeal and the prosecution didn't want to unnecessarily delay the trial.

The judge and defense agreed with a prosecution request to have the notebook unsealed and preserved as potential evidence.

All parties also agreed with a prosecution suggestion that a defense representative, wearing surgical gloves and a mask to protect potential DNA and fingerprint evidence, will unseal the notebook and place the pages on a butcher paper to be digitally photographed.  A police investigator will observe the process, but at a distance where the notebook can't to read because it still hasn't been entered as evidence.

Once the notebook becomes evidence, the prosecution will want it processed for DNA, fingerprints and writing samples.

In other evidentiary motions, the prosecution said it wants to collect more detailed DNA samples from Holmes. Prosecutors said they currently only have a limited DNA sample for Holmes taken under Katie's Law, which allows police to take DNA from people arrested for felonies to see if they are connected to other crimes.

Prosecutors said they have a sworn affidavit from an FBI analyst saying there are indications that eight of 12 DNA samples collected during the shooting investigation are linked to Holmes. But the prosecution said it needs more in-depth DNA profiles from Holmes to confirm he matches the eight FBI DNA profiles.

Prosecutors said they also have a palm print from the inside of the movie theater exit door, which witnesses said Holmes exited and entered just before the shooting. While police fingerprinted Holmes, prosecutors want a palm print to see if it matches the one from the door.

The defense objected to the collection of the DNA and palm print evidence, saying they want a full hearing on the matter so they can question prosecution witnesses about why the additional forensic evidence is needed.

The judge has not made a ruling on the hearing request.

Defense attorneys said they want public sanctions against the prosecution who they accuse of previously lying in open court when they said Holmes was banned from the University of Colorado campus in Aurora after making threats. Officials at CU, where Holmes was a neuroscience graduate student, said they did not strip Holmes of his electronic access key because of a threat.

The defense also asked to be allowed to issue a public statement on the prosecution's alleged lies.

The judge did not rule on either defense motion.

Meanwhile, the judge approved prosecutors' motions to add 10 charges and amend 17 others. This made a new total of 152 charges in the case against Holmes.

All the new and amended charges involved attempted first-degree murder counts, according to court records released Thursday. But because officials redacted victims' names from the records, it was unclear if the charges were about crimes against newly identified victims.

A judge's gag order imposed on officials in the case prevents journalists from getting simple explanations about what the redacted charging documents mean.

Although two months have passed after the shooting and Holmes has appeared in court several times, he has not yet had a preliminary hearing or arraignment.

7NEWS reporter Marshall Zelinger will provide an update on Thursday's hearing during the 5 p.m. news show.

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