DENVER (AP) – Prosecutors in the Aurora theater shooting case objected to a defense request for a separate investigation into who told a reporter about a notebook that defendant James Holmes sent to his psychiatrist before the deadly shootings.
In a filing Wednesday, the district attorney’s office questioned whether District Judge Carlos A. Samour Jr. had the authority to appoint a special prosecutor for an inquiry into Fox News Channel reporter Jana Winter’s sources.
Winter reported the notebook contained violent images, and Wednesday’s filing indicated prosecutors intend to introduce it as evidence at the trial. They could plan to use it in an attempt to undermine Holmes’ argument that he was legally insane — unable to tell right from wrong.
Defense lawyers have called the notebook a “critical piece of evidence.” They say Winter’s story, which was widely cited in other news accounts, tainted the jury pool.
Holmes is charged with multiple counts of murder and attempted murder in the July 2012 shootings at a movie theater in Aurora. Twelve people were killed and 70 were injured.
Prosecutors are seeking the death penalty. The trial is scheduled to start in December.
Winter’s story cited unnamed law enforcement officials, and defense lawyers say those sources violated a gag order and then lied about it under oath.
If a special prosecutor cannot identify the sources, the defense wants Samour to bar prosecutors from seeking the death penalty or to prevent 14 officers from testifying. All 14 handled the notebook and testified they did not speak to Winter.
Prosecutors responded that the defense cited no court precedent for tossing out the death penalty. They also said someone other than the 14 officers might have spoken to Winter.
Winter declined to identify her sources. Defense attempts to force her to reveal them failed when courts in New York — where she lives and works — ruled that New York’s reporter shield law protected her from a Colorado subpoena.
Separately, Samour ruled Thursday that experts on chemicals and metals can testify at Holmes’ trial despite the objections of defense attorneys. Samour said the techniques of both experts were reliable.
Another judge is considering whether to release a review of Aurora’s emergency response to the shootings, The Denver Post reported.
At a hearing Thursday, prosecutors and the defense opposed the release. City officials asked the judge for guidance because of a gag order in the case.
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By DAN ELLIOTT, Associated Press
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