James Holmes case: Prosecutors drop demand for notebook sent to psychiatrist
Update below: Prosecutors in the case of James Holmes decided to drop their request for immediate access to the notebook the accused Aurora theater shooter sent to Dr. Lynne Fenton, who'd acted as his psychiatrist.
But prosecutor Rich Orman said at a hearing held this morning that he thinks it's likely the prosecution will eventually gain access to the notebook.
In explaining the prosecutors' decision, Orman referenced Colorado statute 16-8-103.6, entitled "Waiver of privilege." The statute states that any defendant who pleads not guilty for reason of insanity waives any privilege that might exist between him and his doctor. Here's the first portion of the statute:
Photo by Sam Levin Daniel King, James Holmes's defense attorney, at a previous hearing.
A defendant who places his or her mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103, asserting the affirmative defense of impaired mental condition pursuant to section 16-8-103.5, or disclosing witnesses who may provide evidence concerning the defendant's mental condition during a sentencing hearing held pursuant to section 18-1.3-1201 or 18-1.3-1302, C.R.S., waives any claim of confidentiality or privilege as to communications made by the defendant to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial, hearing on the issue of such mental condition, or sentencing hearing conducted pursuant to section 18-1.3-1201 or 18-1.3-1302, C.R.S. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition.At present, prosecutors think the best course of action is for the notebook to remain with the court, but that Holmes's defense attorneys should be allowed to view and photograph it under police supervision. Orman said that if Holmes waives doctor-patient privilege in the future, the notebook will become important evidence, and the prosecution would want to test it. That process would include swabbing it for DNA, testing it for fingerprints and scanning for indented writing.
Holmes attended today's session. He looked much different than he has at previous hearings. His bushy technicolor hair has been cropped short and reverted to it's natural brown.
Continue to read more about today's hearing.