The (Un)Open and Shut Case of Suspected Colorado Shooter James Holmes

A gag order remains mostly in effect in the case against alleged killer James Holmes. Christine Pelisek reports.

Less than a week after suspected shooter James Holmes’ defense attorney said his client was mentally ill, a Colorado judge agreed to release 34 court documents pertaining to the case.

But Arapahoe County District Judge William Sylvester refused to release the juiciest documents in the case -- any search warrants, affidavits of probable cause, subpoenas, arrest warrants, or school records pertaining to Holmes’ stay at the University of Colorado Medical School, where he was a PhD student -- citing the need to ensure Holmes' right to a fair trial.

The order to release the documents came after 20 news organizations including The New York Times, The Associated Press, and The Denver Post filed a motion asking the judge to lift the so-called gag order. They argued that the sealing of the documents in Holmes’ case "undermines our nation's firm commitment to the transparency and public accountability of the criminal justice system."

But the documents released by the judge do shine some light on the defense team and their strategy in representing the 24-year-old, who is suspected of gunning down 12 people and injuring 58 others in a shooting spree at the midnight showing of "The Dark Knight Rises" at the Century 16 movie theater on July 20 in Aurora.

In one motion filed by Holmes’ public defender Daniel King, he asked, among other things, that Holmes be permitted to be seated at the counsel table with his attorneys, and expressed concern for Holmes’s safety. (So far, during the proceedings, Holmes has been sitting in the jury box heavily guarded by deputies).

“Mr. Holmes’s constitutional rights cannot be compromised because other individuals present in the courtroom have expressed a desire to harm him,” the document says. King wrote that it was crucial for Holmes to be seated with the defense to ensure a “fair trial” and to not give off the incorrect impression that “the sheriff or the Court has concerns about Mr. Holmes expressing threats or exhibiting dangerous behavior…”

In another motion, Holmes’s defense team is asking for a confidential defense expert to be present when the state performs scientific testing of evidence in the case. King argued that without an expert present, Holmes “will have lost any realistic ability to confront the state’s evidence as to the procedures performed and the results obtained. The state’s experts will have sole and virtually unchallengeable control of the evidence generated as a result of the tests.”

King, in a motion filed on July 20, requested that the police preserve all of their investigative notes, emails between prosecutors and police, photographs, and logs and receipts pertaining to the movement of physical evidence. “Defense counsel is aware that it is the practice of law enforcement to destroy their notes,” the motion claims.

Holmes’ attorneys also asked to inspect the crime scenes before they were released back to the owners. “On the basis of the foregoing authorities and Mr. Holmes weighty interest in exploring and gathering relevant and material evidence in his defense, the court should order that the Aurora Police Department and the other law enforcement agencies involved should preserve and hold the scenes to allow counsel an opportunity to access and inspect.”

Among the information new organizations have been hoping to glean from the documents are answers to what school officials did or didn't do after Holmes’ psychiatrist raised serious flags about his behavior. According to media reports, Dr. Lynne Fenton called the university's Behavioral Evaluation and Threat Assessment, or BETA, team and the campus police department trying to find out if Holmes, a San Diego native and first-year PhD student, had a criminal history. Holmes dropped out of school before the school could take any action, according to media reports. Earlier this month, the university hired a former federal prosecutor to conduct an internal review of the university’s handling of Holmes, as questions have persisted about what the university knew about Holmes' mental state prior to the shooting.

Questions also remain about the details of Holmes’s capture. Did he give up, or did he run out of ammunition? Did police find a note in his car detailing his motive? Did he plan to escape, or was his intention to go down in a hail of police bullets?

Two months before the massacre, police believe Holmes stopped by Gander Mountain, an outdoor shop that sells guns and ammunition, and bought a Glock 40 pistol. Over that eight-week period, according to a local law-enforcement source who spoke on the condition of anonymity, he purchased four more weapons, including a shotgun and an assault rifle from different gun shops around Aurora and Denver—and 6,000 rounds of ammunition from the Internet.

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After Holmes was arrested, authorities say he told police that he was the Joker, and police discovered that his third-floor apartment had been booby-trapped with explosives, trip wire, and gasoline. But it is unclear what evidence police may have discovered inside Holmes’ apartment. Law enforcement sources told the Daily Beast that authorities found a Batman mask along as well as Batman posters.

Judge Sylvester ceded to the prosecution’s and defense’s request to keep key documents sealed in part because hundreds of witnesses and victims still had not been interviewed during "the critical early stages of the investigation," he wrote is his ruling. "It is certainly in the public's interest that law enforcement officials conduct a complete investigation thoroughly and efficiently."

Holmes’s preliminary hearing is set for November.