DENVER (Reuters) - Lawyers for accused movie theater gunman James Holmes are seeking a special prosecutor to probe whoever leaked to Fox News details about their client’s plans to commit mass murder, a motion made public on Monday showed.
As part of their effort to identify law-enforcement sources used in a story published five days after the July 2012 massacre, defense lawyers asked Arapahoe County District Court Judge Carlos Samour to appoint an outside agency to trace the source of the leaks.
Holmes, 26, has pleaded not guilty by reason of insanity to opening fire inside a suburban Denver cinema during a midnight screening of the Batman film “The Dark Knight Rises.”
The rampage killed 12 moviegoers and wounded 70. Prosecutors have said they will seek the death penalty for Holmes if he is convicted.
Lawyers for the onetime neuroscience graduate student have conceded that Holmes was the lone gunman, but say he was in the throes of a psychotic state when he went on the killing spree.
Citing two unnamed law-enforcement officials, the online article by New York-based Fox News reporter Jana Winter said Holmes had sent a notebook outlining his plans to commit mass murder to a psychiatrist who was treating him.
Public defenders accused law-enforcement officials of leaking the information, in violation of a gag order imposed by the judge initially assigned to the case. They also sought a court order to compel Winter to reveal her sources.
The New York Court of Appeals ultimately sided with the journalist, and the U.S Supreme Court declined to review the case.
At three hearings in late 2012 and early 2103, more than a dozen police officers who saw the package containing the notebook in a university mail room denied under oath that they were the source of the leak.
In their strongest words to date on the topic, public defenders said they reached an “almost inescapable conclusion that one or more of the law enforcement sources who testified... lied under oath and committed perjury,” the motion said.
Defense lawyers also called for Samour to take the death penalty off the table or to stop nine of those police officers from testifying at trial if a special prosecutor is not appointed.
Prosecutors have not yet responded to the motion.
The trial is set to begin with jury selection in December.
Reporting by Keith Coffman; Editing by Daniel Wallis and Mohammad Zargham