A courtroom sketch shows defendant James E. Holmes during his court appearance… (Bill Robles, Associated…)
CENTENNIAL, Colo. — In a reversal of strategy Thursday, prosecutors in the James E. Holmes mass-murder case abandoned their quest to gain access to a notebook that may have laid out plans for the Aurora movie theater shooting that killed 12 and injured 58.
The move cut short what many expected to be a contentious battle on whether a notebook Holmes sent to psychiatrist Dr. Lynne Fenton the day before the July 20 shooting could be considered part of his ongoing treatment with her. Holmes' attorneys opposed the request, saying the notebook was protected by doctor-patient privilege.
Holmes appeared engaged in the court proceedings, with his hair cut short and dark brown. Gone were the neon orange curls and scruffy beard of his first court appearance.
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Deputy Dist. Atty. Rich Orman said he "continued to believe the notebook is not privileged," but his office would not continue a protracted fight at this time to introduce the contents of the notebook into evidence.
By dropping the pursuit, the prosecution also preempted what Orman suggested could turn into a legal issue before the Colorado Supreme Court.
"We are most likely going to get this [notebook] anyway," Orman said.
Holmes' defense attorneys have already said they believed Holmes is mentally ill. Under Colorado law, Holmes would have to waive doctor-patient privilege to pursue an insanity defense.
On Aug. 30, Judge William Sylvester said he tentatively agreed with the defense assertion that Holmes was still Fenton's patient when he sent the notebook. Still, Sylvester said he was not prepared to rule on the privilege issue until both sides produced more evidence at the Thursday hearing.
The notebook remains sealed with the court. Orman said he had no problem with the defense seeing it.
Also on Thursday, Sylvester granted a prosecution motion to add 10 new felony charges of attempted murder, bringing the total number of charges against Holmes to 152. In addition, the judge allowed prosecutors to amend 17 existing charges. Documents showed names were changed or corrected.
The prosecution has not announced whether it will seek the death penalty against Holmes, but it is considered likely.
Holmes was a neuroscience doctoral student at the University of Colorado-Denver before withdrawing about six weeks before the shooting.
Last month, Fenton, medical director of student mental health services at the university's Anschutz Medical Campus, where Holmes attended, testified that she had seen Holmes only once — on June 11 — and considered their relationship terminated. She also said she was alarmed enough after their session to contact campus police, although she did not say what triggered her concern.
The defense countered that a therapeutic relationship was ongoing and speculated that Holmes sent the notebook as a cry for help and tried to call Fenton through the university hospital operator minutes before the shooting began.
Craig Silverman, a former deputy district attorney in Denver who was in the courtroom, called the prosecution decision "a smart move." He explained that eliminating a lengthy battle shortened the overall process. "Delay is the ally of a death penalty defendant," he said.