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Colorado Judge Unseals Psychiatric Expert Reports in Aurora Theater Shooting Case

Judge Carlos E. Samour, Jr., on June 29 ordered unsealed the court filings surrounding psychiatric evaluations of James Eagan Holmes, the man convicted of killing 12 people and wounding 70 others in the Aurora, Colorado, theater shooting on July 20, 2012. As a result, the public will be able to see, for the first time, the reports two independent psychiatrists filed with the Court, and the treatment notes of two University of Colorado mental health professionals who counseled Mr. Holmes before his deadly rampage.

The ruling may be of significance beyond Colorado because it instructs judges elsewhere that reports of court-appointed psychiatric expert witnesses are not privileged and that defendants who place their mental state at issue in a criminal case thereby waive their doctor-patient privilege in actual treatment records that are entered into evidence.

Although the 66-day trial conducted in the spring and summer of 2015 was open to the public and was livestreamed from a closed-circuit camera mounted on the courtroom's ceiling, all of the documents concerning the forensic psychiatric evaluations remained under seal. On July 16, 2015, the jury rejected Mr. Holmes' "Not Guilty by Reason of Insanity" defense, and convicted him on 24-counts of first-degree murder, 140 counts of attempted first degree murder, and one count of possessing illegal explosives. After jurors failed to reach a consensus on sentencing Mr. Holmes to death, he was sentenced to life without parole on August 26, 2015.

In August 2017, The Denver Post asked the court to unseal the psychiatric expert reports filed by Dr. William Reid, the second court-appointed forensic psychiatrist who interviewed Mr. Holmes for 22 hours on videotape and testified at his trial, and of Dr. Jeffrey Metzner, the first court-appointed sanity evaluator who also testified at the trial.

In addition, The Post sought the unsealing of the treatment records of social worker Margaret Roath and psychiatrist Dr. Lynne Fenton of the University of Colorado Anschutz Medical Center. Ms. Roath and Dr. Fenton provided counseling to Mr. Holmes a month prior to his murderous assault in the movie theater. The notes from the two mental health providers were given to the jury but were never displayed in open court.

Mr. Holmes, the prosecutor's office, and the Colorado Mental Health Institute at Pueblo objected to the release of the reports, arguing that Mr. Holmes maintained doctor-patient privilege with respect to those records, and that his waiver of his privilege was limited to use of those materials only in judicial proceedings. Thus, they argued, the materials could not be used or disclosed outside of trial and sentencing proceedings.

In a thorough 25-page ruling, Judge Samour—who began serving on the Colorado Supreme Court yesterday—rejected those arguments and adopted those put forth by The Denver Post. With respect to the written reports of the two court-appointed psychiatric expert witnesses, the judge ruled that Mr. Holmes never had any doctor-patient relationship or privilege, because those psychiatrists were appointed by the court to evaluate him for testimony at his murder trial —they were not treating him as one of their patients.

Addressing the issue of the treatment notes written by Ms. Roath and Dr. Fenton—both of whom did have a doctor-patient or therapist-patient relationship with Mr. Holmes—Judge Samour ruled that Mr. Holmes waived that privilege when he placed his mental health condition at issue in the litigation by asserting the affirmative defense of "Not Guilty by Reason of Insanity" and, in addition, by not objecting when those treatment records were entered into evidence in the trial and provided to the jurors.

While Judge Samour acknowledged the Colorado Supreme Court's recent ruling that rejected any constitutional right of access to inspect judicial records in Colorado state courts, he applied a strong presumption of public access to such records under Colorado's common law and found that there was no countervailing interest weighing against disclosure (other than the confidential test questions that Mr. Holmes answered as part of his evaluation).

Copyright © by Ballard Spahr LLP

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About this Author

Steven Zansberg, Ballard Spahr Law Firm, Denver, Media and Intellectual Property Litigation Attorney
Partner

For more than two decades, Steven D. Zansberg has represented media companies, online publishers, and individuals in defending claims based on content, fighting subpoenas, and seeking access to government information and proceedings. He represented the national news media in connection with coverage of the Aurora theater shooting case, the Oklahoma City bombing trials, and the Kobe Bryant rape prosecution. He secured access to public records related to the murder of JonBenét Ramsey and the shooting at Columbine High School. Mr. Zansberg also litigates copyright and...

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