CENTENNIAL, Colo. (CN) – The judge in accused mass murderer James Holmes’ case will allow the defense “to impeach the credibility” of every police officer who testified about a leak to a Fox News reporter.
Holmes is accused of killing 12 people and wounding dozens in a shooting spree in an Aurora movie theater during the midnight premiere of a Batman movie. Prosecutors indicated they will seek the death penalty.
Holmes’ trial is set to start Dec. 6.
In a pretrial hearing Tuesday, Arapahoe County District Court Judge Carlos Samour issued an order in response to a defense motion accusing prosecutors of not doing enough to find the police officer who leaked information to Fox News reporter Jana Winter.
Winter’s report cited a law enforcement official who told her that Holmes had sent a notebook to his psychiatrist before the massacre.
The defense claimed that at least one of several officers who testified about the leak at two hearings in 2012 and 2013 must have lied to the court about giving Winter the information.
In the defense motion, Holmes’ attorneys said their client’s right to a fair trial was infringed because the prosecution was not working hard enough to find the leakers. The defense called for a special prosecutor to be appointed, or the death penalty thrown, or for the testimony of all the officers involved to be excluded from trial.
Samour called the special prosecutor option into question and offered a different solution.
“The defendant’s motion for sanction of for appointment of a special prosecutor fails,” Samour wrote on Aug. 28. “To the extent that the motion is based on law enforcement’s alleged violation of the July 23, 2012 pretrial publicity order, it lacks merit for the reason articulated in Order D-17. To the extent that the motion is grounded in law enforcement’s alleged perjured testimony, it fails in light of the remedy provided in this Order. If the record before the Court is complete, it reflects that at least one law enforcement agent was untruthful at one of the hearings held on Motion D-17. Therefore, at trial, the Court will allow the defendant to attempt to impeach the credibility of every witness whose testimony was presented at one of those hearings. Given this decision, the court concludes that neither of the sanctions requested by the defendant for law enforcement’s alleged perjured testimony is warranted and that a special prosecutor is not necessary. Accordingly, Motion D-224 is denied without a hearing.”
Samour claims that this order will help the defense more than any of the other suggestions.
“(N)either of the drastic sanctions the defendant requests is appropriate because this order eliminates any prejudice the defendant may have otherwise suffered. In fact, this order arguably places the defendant in a better position than if he had identified the witness who was untruthful under oath, as it allows defense counsel to attack the credibility of all the witnesses who testified with respect to Motion D-17,” the 28-page order states.
Samour said there are 14 police officers, including “two homicide detectives who played significant roles in the investigation of this case,” whose testimony can be called into question.
The next hearing will be on Sept. 22, to discuss whether a TV camera will be allowed in the courtroom during trial.
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