Notebook leak issue resurfaces in theater shooting trial motion filed by defense attorneys

CENTENNIAL, Colo. - Defense attorneys are still upset about the unresolved question of who leaked information about a notebook the Aurora movie theater shooting suspect sent to his psychiatrist. They argue the leak violated the defendant's constitutional rights and made three new suggestions to repair that harm.

In the days after the shooting, Fox News reporter Jana Winter reported sources told her the notebook depicted violence. She kept those sources anonymous and none of the officials questioned in court admitted to being the source.

Winter was shielded from being called to testify by New York State's shield law and Court of Appeals.

The new motion, filed on Aug. 4, but not made public until Monday, reiterates the argument that the "as-yet unidentified law enforcement leak" violated defendant James Holmes' constitutional rights.

Holmes has pleaded not guilty by reason of insanity to killing 12 people and injuring 70 in an Aurora movie theater in July 2012. Prosecutors are seeking the death penalty.

Defense attorneys argue that Winter's unnamed sources violated a court-issued gag order and may have lied under oath about being the leak.

"The actions of the individual or individuals who are the source of the leak have implicated (sic) Mr. Holmes' constitutional rights to a fair trial, a fair and impartial jury, and to due process."

Although members of law enforcement have testified about their access to the notebook, the contents of it were never detailed with any specifics in court or published documents. In the motion filed last week, the notebook is not even directly mentioned.

The document mentioned the package sent to the psychiatrist but said: "The contents of the package at the time of the leak were confidential and privileged, and have not and will not be made public in advance of trial."

Holmes' attorneys suggest that the judge could prevent further harm at trial by preventing all testimony at trial from any law enforcement official who testified at a previous hearing that they saw the contents of the package but were not the leak.

"There is no question that at a minimum, one of the individuals who handled the package... played a role as the original source of information that led to the media leak," the document states.

Alternatively, the defense suggests the court could preclude the death penalty as a possible sentence in this case.

"The death penalty is simply not an appropriate sanction in a case where such constitutional violations have occurred," the motion states.

Defense attorneys also suggest the appointment of a special prosecutor for an investigation of "how and why the leak occurred." That investigation would also determine if any agent who testified about the package committed perjury by lying under oath at that previous hearing.

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