James Holmes hearing: Decision delayed about whether key package is privileged

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Dr. Lynne Fenton.
Update: The three-and-a-half hour hearing in the James Holmes/Aurora theater shooting case is over -- with no conclusion on a key issue of whether the prosecutors will have access to a package the suspect sent to his psychiatrist, Dr. Lynne Fenton, who was questioned at length today for the first time in the high-profile case.

The case will reconvene on September 20.

At the center of the arguments today, as we noted earlier, are questions about motive and insanity. The prosecution is working on gaining more access to information about Holmes -- including his educational records and details of the package he sent to Fenton -- in the hope of establishing some kind of motive, which would undermine the insanity defense. In response, Holmes' legal team is trying to keep all that information out of the case and today repeatedly argued that psychiatrist-patient privilege protected it.

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Sam Levin
The scene outside the court room before the hearing began.
At the start of the hearing, both sides made arguments about the package in question, which centered on whether Holmes had a professional relationship with Fenton on July 19, before the shooting. The judge's interpretation of this factor will play a big part in determining whether the package is ultimately protected under privilege.

"[Holmes] is the only one that can waive that privilege," Tamara Brady, Holmes' public defender, said at the start of the hearing, later adding, "A mental health provider needs the trust of the patient."

Richard Orman, with the prosecution, argued in his first speech at the hearing that the package did not fall under the privilege rule, since Holmes no longer had a professional relationship with Fenton when he sent the package.

"The [defendant] did not intend for this to be a confidential communication," he said, also noting that if someone sends a Christmas card to a psychiatrist, that wouldn't be protected by privilege, either.

"He intended that Dr. Fenton would know about the bombs in the apartment, the deaths in the movie theater, all of it," he said.

In other words, the prosecution argued, there was no expectation of a continuing therapeutic relationship in the act of sending the package. The defense, however, countered that reaching this conclusion required a large stretch -- and that there is no way to know the intentions of Holmes, who sat quietly during the hearing, never saying a word.

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Sam Levin
Daniel King, defense attorney for Holmes, arrives to the courtroom.
And trying to find out more about the package, the defense argued, would violate privilege.

When Fenton was brought in and questioned by Karen Pearson, another prosecutor, the defense objected to nearly every question she was asked, saying each violated privilege -- and Judge William Sylvester consistently made clear that if there were any doubt, Fenton should not feel compelled to comment.

"I do not want to get into privileged information," he said at one point.

On several occasions, Brady raised a hypothetical, saying that even if the professional relationship had been terminated, if Holmes or any patient were to reach out to a former psychiatrist saying they needed help again or wanted medication, for example, the communication would become privileged.

Pearson, though, argued that "it is their [the defense's] burden to establish that there was a privileged relationship."

For her part, Fenton said that the professional relationship between her and Holmes ended on June 11. During her questioning by the prosecution, she also revealed that she had a conversation with CU Police on that day about "a patient" and that she was aware Holmes's CU access card was revoked the following day.

A lot of the questioning directed at Fenton devolved into confusing verbal gymnastics, with the prosecution trying to ask questions in ways that would not violate privilege and prompt defense objections. At one point, Pearson asked Fenton to describe the ways in which a psychiatrist's relationship could be terminated and Fenton gave three examples: The patient could decide he or she doesn't want to come back, the two parties could agree that treatment is no longer needed or the physician could move away or make some other change that would prevent further treatment.

After much questioning, Fenton, who remained calm and emotionless -- giving concise answers and often pausing before speaking -- said that her professional relationship with Holmes ended in one of those three ways, but she would not say which.

After the first fifteen-minute recess, the judge concluded that the professional relationship existed on June 11, and though Fenton said it ended on that day, there was insufficient evidence to conclude that the package didn't fall under the protection of the privilege rule.

In other words, he seemed to be supporting the defense, though the hearing was only about halfway through at that time.

The bottom line for the prosecution, according to Pearson: "If the relationship is terminated, there is no privilege."

Continue reading for more details from the hearing and our original dispatches.

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If I ever come face to face w/ this poor woman ,

I will take her into my arms and give her the

assurance the world is NOT against her .

I do. I feel horrible for this woman . 

Every time I see her image ,

I just wanna give her the warmest of hugs !..

Compassion people !

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