James Holmes case: Prosecutors drop demand for notebook sent to psychiatrist

Judge William Sylvester.

In addition to the discussion about the notebook, the hearing also addressed a previous motion by the defense to sanction the prosecution for claiming in court documents that Holmes had been banned from the Anschutz Medical Campus, which he had attended, and that his key card had been revoked due to threats. "There is no evidence to support that statement," said defense attorney Daniel King. He added that because of the media attention on the case, these claims had "lasting and extenuating effects," and he asked Judge William Sylvester for permission to release a statement refuting them.

King didn't specify what kind of sanction the defense thought would be appropriate. Meanwhile, the prosecution said briefly that evidence presented in discovery supported the statements made. Judge Sylvester didn't rule on the sanctions request.

Also mentioned were the possibility of prosecutors adding or amending counts in the case, which currently number 142. However, there was no discussion about what these counts might entail. The defense did not object to this request.

The next hearing in the Holmes case was set for 9 a.m. October 11. It is expected to deal with the readiness of the prosecution and the defense to move forward with a preliminary hearing now scheduled for November 13, or if a continuance might be requested.

Update, 12:09 p.m. September 20: Prosecutors said they still believe the notebook is not privileged, but that continuing to debate it would delay the case. Orman said he "did a lot of looking" and "this factual circumstance has never arisen anywhere" in the United States. "The question then becomes, do we want this to be a test case?" Orman said, adding that the prosecutors do not.

Orman laid out a procedure for the defense to follow when examining the notebook. He said prosecutors would like a police officer to be in the room, standing close enough to observe the process but far enough away that he wouldn't be able to read the notebook's contents. He asked that the defense place the notebook on a piece of butcher paper and wear gloves and surgical masks to prevent contamination.

He also suggested that the defense photograph the notebook rather than photocopy it to minimize handling.

In addition, the sides discussed records from the University of Colorado, including e-mails subpoenaed by prosecutors. The defense is concerned the e-mails might contain correspondence between Holmes and Fenton, which they maintain is privileged. The court requested that CU review the e-mails and remove any privileged information.

Prosecutors also addressed a request to fingerprint Holmes and collect his DNA for investigative purposes. Holmes's defense attorneys had objected, prosecutors said, because his DNA was already taken. Prosecutors argued that the previous sample was for a database and not for investigative purposes.

More from our Aurora Theater Shooting archive: "James Holmes defense accuses prosecutors of reckless disregard for the truth."