James Holmes sits with defense attorney Tamara Brady during his arraignment. (AP)
CENTENNIAL, Colo.? If the judge in the James Holmes murder case accepts the defendant?s plea of not guilty by reason of insanity during Tuesday?s hearing, the notebook Holmes sent to his university psychiatrist days before the attacks will likely no longer be shielded under doctor-patient privilege.
Reportedly containing detailed descriptions and drawings of the shootings, the notebook was thumbed through by law enforcement officials in the University of Colorado?s mail room days after the attack.
But because the court ruled last fall that Holmes was under Dr. Lynne Fenton?s psychiatric care at the time, lawyers and witnesses couldn?t discuss or see the notebook?s contents.
That could possibly change Tuesday.
Judge Carlos A. Samour could grant the insanity plea?and he indicated as much in an order last Friday, in which he denied the defense?s request for more time to prepare to discuss the notebook in court.
?[T]he privilege issue related to the [notebook] has been briefed and discussed before,? Samour wrote. ?It is true, of course, that the defendant?s not guilty by reason of insanity plea, if accepted, may alter the analysis, but the parties have been aware of that for some time.?
Indeed, attorneys have discussed the notebook vis-?-vis Holmes? mental state as far back as August, when prosecutors tried to convince the first judge in the case that Fenton was more akin to a general practitioner than a mental health professional and, thus, the notebook wasn?t privileged. The judge didn?t agree, and the mystery of the notebook?s exact contents has continued.
Courtroom sketch of Dr. Lynne Fenton and shooting suspect James Holmes (Bill Robles)
Holmes is accused of gunning down 12 Aurora, Colo., movie theater patrons on July 20 during a midnight screening of ?The Dark Knight Rises,? the latest Batman movie. Fifty-eight others were injured. The Arapahoe County district attorney office is seeking the death penalty.
Also at Tuesday's hearing, Samour will advise Holmes what an insanity plea entails beyond the notebook, including the possibility of state-administered mental health evaluations. The defense lost its bid last week to strike down portions of Colorado state law, arguing that government psych exams could violate Holmes? right to a fair trial in a capital case.
The hearing, originally scheduled for last Thursday, was moved to Tuesday at the defense?s request. The prosecution acquiesced, but only if the hearing would address the notebook privilege issue.
The defense filed its objection to that compromise on Friday, noting that it was pulling ?extremely long hours? to comply with the court?s Monday deadline on non-capital-punishment-related motions as well as work related to Holmes? insanity plea.
?Counsel simply cannot complete all the work that needs to be done on those motions,? the defense wrote in that filing.
Source: http://news.yahoo.com/blogs/lookout/prosecutors-could-soon-look-james-holmes-notebook-094230715.html
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