Accused Mass Murderer’s|Attorneys Seek Leaker

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     CENTENNIAL, Colo. (CN) – In a pretrial motion, attorneys representing accused mass murderer James Holmes claim prosecutors are not doing enough to find the law enforcement officers who gave information about Holmes’ diary to a Fox News reporter.
     James Holmes, 26, is accused of killing 12 people and wounding dozens during the midnight premiere of a Batman movie in Aurora, Colo. on July 20, 2012.
     Prosecutors have indicated they will seek the death penalty.
     Holmes’ attorneys this week filed a motion for relief to enforce and protect Holmes’ rights from violation of a pre-trial publicity order.
     The violation came five days after the shooting, within 30 minutes after an Arapahoe County judge granted a pretrial publicity order.
     Within that time frame, Fox News reporter Jana Winter published an online story stating that Holmes had sent a diary to his psychiatrist, Dr. Lynne Fenton, that contained graphic descriptions of things similar to the attack.
     In January 2013, the court granted a motion to summon Winter to testify in court about who gave her the information about the notebook.
     But the New York Court of Appeals ruled in December that Winter could not be subpoenaed because she lives and works in New York, where journalists are protected by a shield law.
     Holmes’ attorneys filed a writ of certiorari to U.S. Supreme Court, which was denied in May this year.
     Having exhausted all the ways to find out who leaked the information, Holmes’ attorneys claim that if nothing is done to find the source, it could hurt Holmes’ right to a fair trial.
     “Additionally, Ms. Winter’s assertions in her article that ‘two unarmed law enforcement sources’ provided her with information, leads to the almost inescapable concluding that one or more of the law enforcement sources who testified in this capital case at the December 10, 2012 hearing or the subsequent hearings held on April 1 and 10 2013, lied under oath and committed perjury pursuant to C.R.S. section 18-8-502, a class four felony. Indeed, the court acknowledged this fact in the certificate it issued pursuant to Motion D-26. See Certificate of the District Court of Colorado [D-026] p.3. If no further steps are taken, Mr. Holmes’ capital trial will likely include the testimony of a witness who has committed – but evaded prosecution for – perjury in this very case, or at the very least has violated the Court’s pre-trial publicity order,” the defense motion states.
     The defense also claims the prosecution may be biased and is trying to protect the officers who leaked the information.
     “(T)he Eighteenth Judicial District Attorney’s office has an obvious conflict of interest with respect to this issue,” the motion states. “The law enforcement officials potentially responsible for the leak not only work closely with the district attorney’s office on a regular basis, they are endorsed prosecution witnesses in this case. The District Attorney’s Office clearly has a vested interest in protecting the credibility of its witnesses and in avoiding a determination that at least one of them has violated the court’s pretrial publicity order and has potentially committed perjury, a felony offense.
     “The prosecution has failed to employ its resources to vigorously pursue the source of the leak or identify any perjured testimony despite the serious issues at stake. In cursory fashion, it claimed in the immediate aftermath of the leak that it had ‘contacted the Aurora Police Department and spoken with the United States Attorney for the district of Colorado and indicated to him that any leak of information relating to alleged contents of the notebook needs to be fully investigated.’ Response to D-008, p. 2. However, two years later, the defense has received absolutely no indication that the District Attorney’s Office has made any effort to follow up on these supposed efforts to determine the nature and source of the leak or has undertaken any other sort of investigation, via grand jury or otherwise, to determine the source of the leak.
     “Therefore, as explained further below, the defense requests the court take action in order to enforce and protect Mr. Holmes’ constitutional rights, either by imposing a remedial measure that would alleviate the negative impact that law enforcement’s conduct has had on Mr. Holmes’ rights, or by appointing a special prosecutor to further investigate the leak and potential perjury violations.”
     Holmes’ attorneys asked the court to either exclude all testimony from law enforcement officials who could have been involved in the leak, or to throw out the death penalty as a possibility.
     Arapahoe County Judge Carlos Samour has not ruled on this matter.
     The trial is to begin in December.