Doctor-patient privilege is focus of Colorado shooting hearing

CENTENNIAL, Colo. — A defense attorney in the Aurora theater shooting floated a startling scenario in court Thursday, suggesting that the accused gunman may have tried to contact his psychiatrist minutes before a post-midnight attack that left 12 people dead and 58 wounded.

Public defender Tamara Brady did not say whether James E. Holmes made such a call, but raised the possibility while questioning the University of Colorado psychiatrist who saw him as a patient on June 11.

After establishing that anyone dialing a phone number to a university hospital operator could reach Dr. Lynne Fenton, Brady asked, “Did James Holmes call that number nine minutes before the shooting started?”

“I don’t know,” Fenton replied.

The hearing sought to resolve one of the thorniest legal issues of doctor-patient privilege in the case against Holmes, 24, a former doctoral student who withdrew from the university’s neuroscience program about six weeks before the July 20 shootings.

Holmes faces 24 murder charges — two for each person killed — and a total of 142 criminal counts. He appeared in court Thursday clean-shaven but with much of his hair still neon orange. At times he seemed to be trying to watch Fenton as she entered the courtroom, but mostly he avoided looking at her as she testified.

The prosecution maintains that the doctor-patient relationship between Holmes and Fenton ended June 11 — the only time he sought counseling with her. Chief Deputy Dist. Atty. Karen Pearson said that because the relationship had ended, a package Holmes sent to Fenton on July 19 — believed to contain a notebook outlining his plans for the massacre — is not protected communication between a doctor and patient.

Brady countered that although Fenton did not see Holmes again, their therapeutic relationship was not over. She said her client might have wanted to seek treatment at a later date — even from prison — and might have been trying to reach out to her for help weeks after he first got counseling.

“Perhaps the package was saying, ‘I’m feeling bad. Please stop me,’” she theorized.

It was another clue to the strategy of the defense, which acknowledges Holmes was mentally ill.

Fenton testified that she called campus police the same day she saw Holmes. “I was trying to gather more information and to communicate my concern,” she said.

Judge William Sylvester did not rule on the admissibility of the package or whether it fell under privileged communication, opting to continue the hearing on Sept. 20. He did say midway through the 31/2 -hour proceedings that he preliminarily agreed with the defense that the doctor-patient privilege did not end in June but continued until July 19 when the package was sent.

Sylvester said it was not clear whether the package was part of the ongoing therapeutic relationship. He predicted the issue could end up before the Colorado Supreme Court.

Last week the prosecution advanced its own scenario, describing Holmes as a once-promising student in an elite program whose life had unraveled. In a motion seeking access to his academic records, prosecutors said he told a classmate in March that he wanted to kill people.

Pearson said he failed his oral exams on June 7, was told by professors he should find another course of study, and threatened a professor. Holmes began withdrawing from the university June 10, one day before he saw Fenton.

Meanwhile, the Associated Press reported that the University of Iowa had emphatically rejected Holmes’ application to its graduate neuroscience program last year.

Two days after interviewing Holmes in January 2011, neuroscience program director Daniel Tranel wrote to the admissions committee: “James Holmes: Do NOT offer admission under any circumstances.”

Another professor who interviewed Holmes agreed. Their reasoning was not spelled out in information released in response to a public records request.

nation@latimes.com