DENVER (AP) – Attorneys for Colorado theater shooting defendant James Holmes renewed their attempt to find out who leaked information about a “critical piece of evidence” to a reporter, or to weaken prosecutors’ case if the source can’t be identified.
In a motion filed last week and released Monday, defense lawyers said the jury pool was tainted and Holmes’ right to a fair trial was violated by a news story that said days before the shooting, Holmes sent his psychiatrist a notebook containing violent drawings.
The defense is asking Arapahoe County District Judge Carlos A. Samour Jr. to do one of three things: bar trial testimony from all 14 officers who handled the notebook but denied being the reporter’s source; block prosecutors from seeking the death penalty; or appoint a special prosecutor to investigate the leak.
The story, by Fox News Channel reporter Jana Winter, cited unnamed law officers. Holmes’ lawyers argue that whoever it was violated a gag order and likely committed perjury by denying it when questioned later under oath, undermining their credibility as trial witnesses.
Holmes, now 26, is accused of fatally shooting 12 people and injuring 70 in the July 20, 2012, attack on a suburban Denver theater. He pleaded not guilty by reason of insanity, and prosecutors are seeking the death penalty. His trial is scheduled to start Dec. 8.
Holmes’ attorneys have acknowledged he was the shooter but said he was seized by a psychotic episode. His fate is expected to turn on whether he was legally insane – unable to tell right from wrong – at the time of the shootings, which will be determined by the jury.
However, his attorneys have pursued multiple avenues in attempts to weaken the prosecution’s case, including Winter’s story, which appeared days after the shooting and was widely reported. In their new motion, defense lawyers said Winter’s story led to “several extremely prejudicial news articles concerning a critical piece of evidence.”
The defense tried for more than a year to force Winter to identify her sources, but she resisted. State courts in New York, where she lives and works, ultimately declined to enforce a Colorado subpoena, saying Winter was protected by New York’s reporter shield law. The U.S. Supreme Court declined to hear the case.
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