Prosecutors dropped a bid to view the contents of a notebook Colorado theater shooting suspect James Holmes sent to a psychiatrist just before the July 20 incident, in which 12 people were killed.
The defense has argued that the notebook is subject to patient-doctor privilege and can’t be viewed by prosecutors. The notebook is in the possession of the state court in Centennial, Colorado, where Holmes faces 24 counts of first-degree murder and more than 100 of attempted murder.
Prosecutors still maintain the notebook isn’t privileged, Deputy Arapahoe County District Attorney Rich Orman told Judge William Sylvester today. Still, Orman said, any decision on the question would probably trigger an appeal that would delay the case “for a long time.”
Orman said he believes prosecutors will eventually be able to see the contents of the notebook anyway because Holmes’s attorney has indicated that his client, who was in court today, is mentally ill.
“There is a high likelihood that any privilege that exists with this notebook will be waived in the future,” Orman said.
Holmes is accused of opening fire on the audience at a midnight screening of “The Dark Knight Rises” in Aurora, Colorado. Sylvester had been asked to decide whether a package Holmes sent to Lynne Fenton, a University of Colorado psychiatrist, was protected by doctor-patient confidentiality. Fenton testified last month that she had met with Holmes less than six weeks before the shooting.
“You don’t have to be Sherlock Holmes to see an insanity defense is coming here,” said Craig Silverman, a Denver defense attorney and former prosecutor who attended today’s hearing. An insanity plea could open a way for prosecutors to view the notebook, although that’s not guaranteed, he said.
Holmes, who studied neuroscience at the University of Colorado Denver, is charged with 24 counts of first-degree murder for the 12 people killed in the shooting. First-degree murder can carry the death penalty in Colorado.
Sylvester today let prosecutors add 10 attempted murder charges against Holmes to the 116 he already faces.
The case is People v. Holmes, 12-cr-01522, 18th Judicial District Court, Colorado (Centennial).