Prosecutors Drop Bid For Holmes' Notebook

Your News Companion by Ben Mathis-Lilley
Sept. 20 2012 1:57 PM

Prosecutors Drop Bid For Holmes' Notebook, Say They'll Get It Eventually Anyway

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James Holmes appears in court at the Arapahoe County Justice Center in July

Photograph by R.J. Sangosti/AFP/GettyImages.

UPDATE: Colorado prosecutors have dropped their bid to gain access to James Holmes' notebook—although they say they will likely be able to get a long look at in anyway if the case proceeds as expected.

Josh Voorhees Josh Voorhees

Josh Voorhees is a Slate senior writer. He lives in Iowa City. 

At a hearing today, prosecutors formally dropped their request for the notebook, which Holmes had sent to a psychiatrist before the Aurora shooting. The official reason given for the prosecution's change of course was that they wanted to avoid what they expected to be a lengthy fight over whether the notebook was protected under doctor-patient privilege.

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In the long run, Prosecutor Rich Orman told the court, that fight would likely prove useless. ABC News explains:

"Orman also told Judge William Sylvester that the issue of privilege will likely become moot because if Holmes pursues an expected insanity defense, he will automatically waive privilege, giving prosecutors access to the notebook."

Holmes' defense team has not yet been granted their own access to the notebook, but that will soon change, according to ABC.

Original Post at 9:18 a.m.: Prosecutors will try again today to convince a judge that they should have access to a notebook that James Holmes sent to a University of Colorado psychiatrist before opening fire in an Aurora movie theater this summer.

During the prosecution's first attempt to obtain the notebook—which is believed to contain descriptions of a violent attack—the presiding judge ruled that they had not done enough to prove that the doctor-patient privilege doesn't apply in this instance.

The Associated Press explains the prosecution's argument:

In their quest to obtain Holmes’ notebook, prosecutors are arguing that it and its contents are fair game because Holmes wasn’t to undergo therapy because he planned to be dead or in prison after the shootings rampage at an opening night showing of “The Dark Night Rises.”
Chief Deputy District Attorney Karen Pearson didn’t explain in court Aug. 30 why she believed Holmes could have planned to be dead, but she pointed to a dating site where Holmes asked if he would be visited in prison. "He intended to be dead or in prison after this shooting,” Pearson said last month."

Holmes' defense, meanwhile, has painted a different picture. At the hearing last month, Holmes' attorney revealed that her client attempted to reach out to the psychiatrist in question, Dr. Lynne Fenton, only minutes before the shooting. That, the defense argues, is proof of a cry for help from Holmes and suggests he still considered Fenton to be his doctor.

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