CENTENNIAL, Colo. (AP) — For the first time with hair that’s brown instead of a wild shade of orangish-red, the suspect in Colorado’s movie theater shooting appeared in court Thursday as prosecutors gave up their fight to see a notebook he sent to a university psychiatrist, saying they didn’t want to delay proceedings.
Holmes appeared more animated during the hearing. He smiled and glanced around the courtroom, looking at his lawyers and reporters covering the hearing. He appeared to be moving his mouth but not actually talking.
Defense attorneys say Holmes is mentally ill and that the notebook, sent to Dr. Lynne Fenton, shouldn’t be released because of doctor-patient privilege. Fenton last saw Holmes professionally on June 11 before seeing him again in court on Aug. 30.
Prosecutors argued that the notebook and its contents are fair game. He planned to be dead or in prison after the shooting rampage at an opening night showing of “The Dark Night Rises,” they said, and had no plans to undergo therapy.
But Deputy District Attorney Rich Orman said even if prosecutors convinced the judge the notebook isn’t protected, defense attorneys would likely appeal the decision.
“We still think we have good and compelling evidence that the notebook should not be privileged,” Orman said, adding that because of possible delays, “we’re not asking to look at it.”
If Holmes’ mental health becomes an issue in the case, Orman said Holmes would have to waive privilege and prosecutors likely would gain access to the notebook, which remains in the custody of the court. Sylvester approved a procedure for Holmes’ defense team to examine the notebook, which includes having a police officer present in the room.
“His notebook, his sketches, his drawings, everything should be made public so we can learn from it and prevent this from happening again,” said Greg Medek, of Aurora, whose daughter Micayla, 23, died in the shooting. “He’s just putting on a show. I don’t think he’s crazy. He’s just evil.”
Holmes has been charged with 142 counts, including murder and attempted murder, stemming from the July 20 attack at an Aurora theater that killed 12 and wounded 58 others. Arapahoe County District Judge William B. Sylvester on Thursday approved prosecutors’ request to add 10 additional charges and amend 17 others.
The hearing was cut short by the prosecution’s decision not to seek the notebook. The lead police investigator and another detective had been expected to take the stand to help prosecutors make their case for why they should be able to see the notebook, which purportedly contains descriptions of a violent attack.
Former Denver prosecutor Karen Steinhauser said prosecutors want the notebook to bolster their case that the shooting was deliberately planned and carried out by a sane person. But should Holmes plead insanity, prosecutors would have the right to the materials, including the notebook, that the examining psychiatrist would have used to form a professional opinion about Holmes’ sanity. She also said prosecutors might be able to gain access to the notebook through an “implied waiver” of privilege should Holmes talk about its contents to inmates or jail guards.
“They (prosecutors) believe they will ultimately have access to that notebook,” said Steinhauser, who is also a law professor at the University of Denver. “They want to keep this case moving.”
Last month, Orman said in court Aurora police major crimes detective Craig Appel would testify that Holmes bought a ticket at the theater, took a seat, then walked out of an emergency exit, propping the door open so he could come back and start shooting. Orman said that detective Tom Welton would testify that it was Holmes who posted profiles on Match.com and AdultFriendFinder.com before the shooting with the tagline, “Will you visit me in prison?”
In the days following the shooting, bloggers posted profiles reportedly found on those sites showing the same prison comment accompanied by a picture of a man with orange hair who resembled Holmes. In one posting under the screen name, Classic_Jim, favorite movies listed include the Jim Carrey cult classic “Dumb and Dumber,” and “Star Wars, etc.”
Holmes was a graduate student in the neuroscience program at the University of Colorado. Prosecutors said Holmes did poorly on a key exam and withdrew on June 10 while he was stockpiling guns, ammunition and body armor ahead of the shooting.
Other matters at the hearing argued by prosecutors and defense attorneys but not ruled on by Sylvester include:
— Prosecutor’s request to obtain a palm print from Holmes to compare it with a partial palm print found on the inside of an exit door at the theater, as well as an additional DNA sample. Orman said technicians could not compare the palm print with standard fingerprints. It was unclear why prosecutors sought an additional DNA sample. Defense attorney Daniel King objected, saying prosecutor’s request for “non-testimonial evidence” is unreasonable.
— Defense attorney’s request for sanctions against prosecutors for “reckless disregard for the truth.” King said that prosecutors made unsupported allegations in court and in documents that Holmes made “threats” and was “banned” from the university. King asked the judge to temporarily lift the gag order so King could issue a statement to the media. Chief Deputy District Attorney Karen Pearson said she provided documents to Holmes’ defense team that supports the allegations.
Holmes had also applied at graduate neuroscience programs at Iowa, University of Illinois, Texas A&M, Kansas, Michigan and Alabama.
Holmes was accepted at the University of Illinois, Urbana-Champaign with an offer of free tuition and $22,000 a year. But Iowa rejected him with a “Do NOT offer admission under any circumstances” notation.
University of Alabama at Birmingham also rejected him with one professor noting that “he may be extremely smart, but difficult to engage.”