Aurora theater massacre prosecutors set back by judge

"I am going to be very careful that we don't violate privilege. Quite frankly, that would be very problematic," Chief Judge William Sylvester said.

By Brandon Johansson, Staff Writer

CENTENNIAL| Accused shooter James Holmes may have tried to call University of Colorado Hospital or his psychiatrist nine minutes before the gunman opened fire at an Aurora theater.

Daniel King

Defense attorney Daniel King leads other public defenders into court for a motions hearing for suspected theater shooter James Holmes in district court in Centennial, Colo., on Thursday, Aug. 30, 2012. Holmes has been charged in the shooting at the Aurora theater on July 20 that killed twelve people and injured more than 50. (AP Photo/Barry Gutierrez)

Karen Pearson

Assistant District Attorney Karen Pearson leads the prosecution team into court for a motions hearing for suspected theater shooter James Holmes in district court in Centennial, Colo., on Thursday, Aug. 30, 2012. Holmes has been charged in the shooting at the Aurora theater on July 20 that killed twelve people and injured more than 50. (AP Photo/Barry Gutierrez)

Karen Pearson

Assistant District Attorney Karen Pearson leads the prosecution team into court for a motions hearing for suspected theater shooter James Holmes in district court in Centennial, Colo., on Thursday, Aug. 30, 2012. Holmes has been charged in the shooting at the Aurora theater on July 20 that killed twelve people and injured more than 50. (AP Photo/Barry Gutierrez)

Lynne Fenton

Dr. Lynne Fenton, the University of Colorado psychiatrist who was treating suspected theater shooter James Holmes is seen through a window leading to a district courtroom where a motions hearing was being held in Holmes case in Centennial, Colo., on Thursday, Aug. 30, 2012. James Holmes has been charged in the shooting at the Aurora theater on July 20 that killed twelve people and injured more than 50. (AP Photo/Barry Gutierrez)

During a motions hearing Thursday Holmes’ lawyer asked Holmes’ former psychiatrist, Dr. Lynne Fenton, whether Fenton knew if Holmes called the main switchboard for the University of Colorado Hospital just minutes before the July 20 attack. Fenton replied that she didn’t know.

Questioning late Thursday revolved around Fenton’s relationship with Holmes, who was a neuroscience graduate student at CU until he dropped out in June.

At the end of the day, prosecutors walked away empty handed in their attempt to persuade the court that information and communications involving Fenton were protected by doctor-patient privileges.

Fenton said her relationship with Holmes June 11, the day of his last session with her. That same day she contacted Anscutz Medical Campus police about Holmes. She wouldn’t say what prompted her to go to police but said she “would only do so if I was very concerned.”

Fenton took the stand at about 2 p.m. at the Arapahoe County Courthouse on Thursday to discuss her relationship with Holmes as the prosecution and defense wrangle over whether a package Holmes mailed to Fenton the day before the hearing constitutes a privileged communication between a doctor and their patient.

Prosecutors argue that it doesn’t because Holmes was no longer Fenton’s patient when he mailed the package. Holmes’ lawyers say even if Holmes was no longer Fenton’s patient, the privilege he established when he was being treated by Fenton carries over, and the package is protected.

It isn’t clear exactly what was in the package, but prosecutors said several times it contained a notebook.

The question remains whether James Holmes, 24, sent the notebook to Fenton for use in therapy or treatment. Prosecutors at a hearing Thursday argued that the notebook wasn’t meant to be used for those purposes because Holmes wasn’t going to be around.

“He intended to be dead or in prison after this shooting,” Chief Deputy Karen Pearson said in court. Pearson didn’t explain why she believed Holmes would be dead, but she pointed to a dating site where Holmes asked, “Will you visit me in prison?”

Defense attorney Tamara Brady objected to Pearson’s argument and said she was making “many gigantic leaps” and that a doctor patient relationship existed even though Fenton hadn’t seen Holmes since June 11.

“I’m feeling bad, please stop me. Do something. Help me,” Brady said was a possible reason for Holmes sending the notebook to Fenton, adding that prisoners can still be seen by psychiatrists.

Chief Judge William Sylvester sided at least in part with the defense, saying he’d rather err on the side of caution when it came to a possibly privileged communication.

“I am going to be very careful that we don’t violate privilege. Quite frankly, that would be very problematic,” Sylvester said.

Sylvester also said that any ruling he may have would likely be appealed to a higher court before Holmes stood trial for the July 20 slayings.

Investigators intercepted the package a few days after the shooting, finding it in a school mail room before it reached Fenton’s office.

Fenton said she wouldn’t have opened the package even if she had received it.

“Given the shooting that happened on July 20, and this was likely the same person, I would not have opened the package anyway,” she said.

The defense objected to nearly every answer by Fenton, arguing that her response should be protected.

Holmes appeared wide-eyed and disconnected, as he has in previous appearances, but he was visibly nervous when Fenton was asked by prosecutors to identify Holmes. Holmes’ eyes shifted around the court as Fenton described him as wearing red “scrubs” and sitting at the defense table. It also appeared as if Holmes had shaved recently.

Prosecutors also planned to call several police officers and an ATF agent to testify about Holmes’ weapons purchases and other conduct before the shooting. Chief Deputy District Attorney Karen Pearson said their testimony was important because it would show that Holmes planned to be dead or in jail by the time Fenton received the package. That being the case, Pearson said, Holmes clearly didn’t intend to send the package to Fenton as a patient and his communication should not be protected.

Sylvester balked at hearing much of that testimony, saying it wasn’t relevant to a hearing narrowly focused on whether the package Holmes mailed was privileged.

But, rather than stop the prosecution from calling the officers to testify, Sylvester continued the hearing until Sept. 20.

University spokeswoman Erika Matich said the school would have no comment on Fenton’s testimony, including any details about her contact with campus police. A university spokeswoman said last week that a criminal background check was done on Holmes before the attack but released no details.

“Dr. Fenton’s testimony stands for itself,” Matich said.

Meanwhile, the University of Iowa released records showing it rejected Holmes from a graduate neuroscience program last year after he visited campus for an interview and left the program director bluntly warning colleagues: “Do NOT offer admission under any circumstances.”

University spokesman Tom Moore said Holmes was academically qualified but officials did not see him as a “good personal fit for our program.” He declined to elaborate.

Holmes later enrolled as a first-year Ph.D. student in a neuroscience program at the University of Colorado, Denver. He withdrew June 10.

His rejection from the Iowa school stands in contrast to his previously released application to a similar program at the University of Illinois, where he was offered admission with free tuition and $22,000 per year but declined to enroll.

Holmes said on his Iowa application that he also was applying to Texas A&M, Kansas, Michigan, Alabama and Colorado. He wrote in his Iowa application that he had a thirst for knowledge and wanted to study the “science of learning, cognition and memory.”

Holmes added that he was passionate about neuroscience and would bring “my strong moral upbringing” to the program.

 The Associated Press added to this report.
  • Capita Censi

    Would “violating privilege” just be a very big problem or illegal?

  • Scarlett

    Brandon, you may want to read a copy of Eats, Shoots & Leaves, or run your articles past an editor before you print them. This is good, but there are several errors in it.
    “Meanwhile, the University of Iowa released records showing it rejected Holmes from a graduate neuroscience program last year after he visited campus for an interview and left the program director bluntly warning colleagues: “Do NOT offer admission under any circumstances.” – The way this is written, Holmes visited the campus and then Holmes left the program director and Holmes warned Holmes’ colleagues not to offer admission. You basically wrote Holmes did this AND this. He didn’t. Holmes did this, *which* left the program director.. etc.
    The paragraphs following that also have grammatical errors: “University spokesman Tom Moore said was academically qualified ” …said HOLMES was, and “He withdrew June 10.”…incomplete. He didn’t withdraw a calendar date. He withdrew *from the program on* June 10.” Also, ” free tuition and $22,000 per year but declined…”; and $22k per year for what? If you’re going to mention it, include information about what it’s for or from. Was it a stipend or a grant? There should be a comma after year.
    I am sorry to bring these errors to the forefront, but I am quite sure that due to the enormous publicity of this event, this publication has seen an increase in readers and I want Aurora well represented in any public capacity. You wrote a good article, and I’m sure there will be more to come. Please run future articles past an editor before you publish them.

  • Scarlett

    Spell checking could also help you quite a bit: “During a motions hearing Thrusday…”

  • musimann

    Looks to me like Dr. Fenton is his MK Ultra handler that programmed him to kill. Nice of the media to try and hide her. He called her before the killing episode and some say he received a phone call in the theater. Probably giving him the trigger words. At the very least you could say her Psychiatric services were a complete failure.

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