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Judge in James Holmes case: Gag order remains, most records remain sealed

Pool / Getty Images file

Chief Judge William B. Sylvester presides over the accused movie theater shooter James Holmes' first court appearance at the Arapahoe County on July 23 in Centennial, Colo.

The judge in the case of Colorado shooting suspect James Holmes ruled on Monday to keep nearly all relevant court documents sealed from public view, and keep a gag order in place, saying disclosure of records could damage the investigation, and the defendant’s access to a fair hearing.

Arapaho County Court Judge William Sylvester denied most of a legal motion by 21 news organizations to open up the court records on Holmes, who is accused of killing 12 people, injuring 58 more in a shooting spree at the midnight premier of the latest Batman movie at a theater in Aurora, Colo. on July 20.

The consortium, including NBCUniversal Media, was seeking access to a range of records in the Holmes case — including affidavits of probable cause, arrest warrants, search warrants, and request for or court orders for production of records — citing the public’s right of access to public records.

Holmes "stands accused of a shocking mass murder" as well as arming his apartment with explosives apparently intend to kill first responders, said the 85-page motion to unseal the records.

"The public has an obvious and legitimate interest in knowing on a timely basis the actions being taken by the government officials… responsible for the prosecution and trial of the Defendant. Yet, virtually all records now on file with the Court in connection with this case are under seal, entirely unavailable for public inspection."  

In its 85-page motion, the media group was also asking the judge to lift a gag order that prevents the University of Colorado from discussing the case. Holmes had recently withdrawn from a PhD. Program in neuroscience when the attack occurred.

That request was denied.

"Simply put, there is a very real potential for untold harm to the case, and that cannot be allowed to occur," Sylvester wrote of university records related to Holmes. "The investigation of this matter continues and the court FINDS that any release of the University of Colorado records at this time would interfere with the investigation and may cause irreparable harm."

There existed "no less-intrusive alternative exists" to the gag order, the ruling said.

The prosecution argued that the investigation was still in its initial stages, and there were still hundreds of witnesses and victims to interview.

The defendant argued for documents to remain sealed, because "this case is precisely the type of rare instance in which pre-trial publicity alone has the potential to actually deprive a defendant of a fair trial," according to the ruling.

Sylvester ruled that he would release some court documents in the case.

Members of the public will have access to a list of documents filed, as well as some submitted by attorneys, including Holmes' defense attorney's request that their own experts be present for scientific testing of evidence, according to the Associated Press, which is part of media consortium seeking to unseal documents.

Steve Zansberg, the attorney representing the media consortium said that Sylvester's partial release of documents brings "much needed transparency to this judicial proceeding," according to a statement cited by AP.

But he added: "We are disappointed that the affidavits of probable cause remain under seal at this time, but are hopeful that the Court will revisit that issue sometime in the not too distant future," it said.

Holmes is charged with 142 criminal counts, including 24 counts of first-degree murder in the attack at the premiere of "The Dark Knight Rises" and possession of explosives.

After arresting Holmes —  who had dyed his hair bright red, and referred to himself as "Joker" according to information released by the police at the time — authorities found the suspect's apartment was booby-trapped with a jumble of explosives and incendiary devices set to be triggered by tripwires. It took experts several days to disarm the devices.

No clear motive has surfaced from the limited information that has been made public.

At a hearing last week, lawyers for Holmes asserted that their client is mentally ill.

In Scott Robinson, a Denver defense attorney not connected to the case and a legal consultant to NBC News, says references to Holmes' mental illness by his attorneys and their allusion to a university psychiatrist he had contacted signal that the defense team likely will pursue an insanity strategy.

"By alluding to Holmes' mental problems, it's clear the defense is sowing the seeds for a defense of not guilty by reason of insanity," said Robinson.

Appearing in court last Thursday for the third time since his arrest, Holmes had the same dazed demeanor that he has had in previous court appearances, according to the Associated Press.


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