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Colorado suspect tried to call psychiatrist before shooting, attorneys say

by P. Solomon Banda

Denver — The suspect in the Colorado shooting tried unsuccessfully to call his university psychiatrist 9 minutes before he opened fire during a Batman movie premiere, defense attorneys revealed in court Thursday.

James Holmes placed the call to an after-hours number at a hospital at the University of Colorado, Anschutz campus, where he could reach psychiatrist Lynne Fenton, defense attorney Tamara Brady said.

It wasn't clear why he called Fenton, and she wasn't immediately available to talk to him. Holmes is accused in the July 20 shooting that left 12 people dead and 58 wounded.

The detail about the call came out during a hearing about Holmes' relationship with Fenton, to whom he mailed a package containing a notebook that reportedly contained violent descriptions of an attack.

Prosecutors are asking a judge to allow them to review the notebook as part of their investigation, but defense attorneys say the journal is protected by doctor-patient privacy laws, and is inadmissible.

Brady brought up the phone call in an effort to show that Holmes and Fenton had an ongoing doctor-patient relationship.

"Do you know that Mr. Holmes called that number 9 minutes before the shooting started?" Brady asked Fenton.

Fenton responded, "I did not."

Prosecutors asked Fenton if Holmes also had her office phone number and whether she could be reached that way. Fenton said yes to both questions.

Fenton also testified that she met with Holmes only once, on June 11, and that she believed their privileged relationship was limited to that day.

When Chief Deputy District Attorney Karen Pearson asked Fenton if she had a doctor-patient relationship with Holmes on July 19, when he mailed her the package, Fenton said, "I believe I did not."

Defense attorneys presented the judge a "client summary" that Fenton filled out after her meeting with Holmes. They argued the document established that the confidential nature of her relationship with Holmes was ongoing.

Meanwhile, if Holmes pleads not guilty by reason of insanity, prosecutors wanting to prove that he methodically carried out a deadly Colorado movie theater shooting have a difficult task before them: They must prove he is sane.

Unlike other states where the defense needs to prove insanity, prosecutors in Colorado are the ones who have to show that a defendant is sane — all without the ability of having their own experts examine Holmes.

"It's burden of proof on steroids," said Marcellus McRae, a former federal prosecutor now in private trial attorney in Los Angeles. "It's totally subjective. It's not like proving somebody pulled the trigger. That's objective."

Whether he pleads guilty by reason of insanity, the case against Holmes promises to focus on his mental health.

His attorneys say Holmes is mentally ill and that he sought help from Fenton at the school, where he was a Ph.D. student, until shortly before the July 20 shooting that killed 12 people and wounded 59 others. Prosecutors allege that Holmes may have been angry at the failure of a once promising academic career.

Records recently released via requests filed by the Associated Press and other news outlets show that Holmes stated on his 2010 application to the graduate neuroscience program at the University of Iowa that he was also applying to the University of Michigan, among other schools.

In his application to Iowa, which was rejected, he painted himself as a bright student interested in improving himself and helping the world with a career in scientific research.

Following an interview with Holmes in early 2011 neuroscience program director Daniel Tranel wrote a strongly worded email two days later urging the admissions committee not to accept Holmes to the school.

"James Holmes: Do NOT offer admission under any circumstances," wrote Tranel, a professor of neurology. Neither he nor a colleague who also recommended Holmes not be admitted elaborated on their reasoning in the emails.

Insanity is unlike the mental competency argument used for Jared Loughner, who ultimately pleaded guilty in federal court to the 2011 Arizona shooting that killed six people and wounded 13 others, including then-Rep. Gabrielle Giffords.

Mental competency involves whether a defendant is aware of what's happening in court and can assist his or her attorneys with a defense. In Loughner's case, he received treatment, became competent and entered his plea.

In an insanity defense, a defendant is deemed not guilty because he didn't know right from wrong and is therefore "absolved" of the crime, Jefferson County District Attorney Scott Storey said, who recently lost an insanity case.

If Holmes is found sane and goes to trial and is convicted, his attorneys can try to stave off a possible death penalty by arguing he is mentally ill. Prosecutors have yet to decide whether to seek the death penalty.

Authorities have said that Holmes meticulously stockpiled ammunition and other gear and booby-trapped his apartment to kill, suggesting that he knew what he was doing.

With the burden on prosecutors, those details don't matter, prosecutors say.

Insanity cases depend on a court ordered evaluation by state psychiatrists and up to two additional state evaluations requested by defense attorneys or prosecutors and approved by a judge.

In about 40 states and in federal court, the burden of proof is on the defense, which must prove that a client is insane.

In federal court, a defendant has to prove by clear and convincing evidence that he is insane.

John Hinckley Jr.'s acquittal by reason of insanity in his 1981 assassination attempt on President Ronald Reagan prompted the federal government and dozens of states to change their laws to shift the burden of proof of insanity to defendants.

The uphill battle for prosecutors is compounded by the incomprehensible nature of the crime.

"What do you think the popular mindset is about somebody coming into a theater and killing a bunch of people? That he's crazy," said McRae, the former federal prosecutor. "If they (prosecutors) didn't have to prove insanity, this wouldn't be much of a trial at all."

Teens who text, drive face new law in Ohio

Penalties to take force in state today

Austin Ward has been behind the wheel of a car -- as a licensed driver -- only for a few months.

"All of the driving-school rules are still fresh in my head," the 16-year-old junior at Toledo Technology Academy said.

The Ward youth said he doesn't text and drive, so the new statewide law that goes into effect today won't impact the way he operates.

For motorists 18 and younger like him, it is now illegal to use nearly any handheld wireless communication device while in traffic, which includes sitting at a red light or in a traffic jam.

Toledo police Sgt. Joe Heffernan said the new law won't change a lot of what police in the city do now -- a similar ordinance was passed in Toledo in 2009 and took effect in 2010 -- but could help increase awareness of distracted-driving risks. The state law is also much tougher on young drivers.

The only exceptions are using preprogramed GPS devices or making emergency phone calls for police, an ambulance, or firefighters.

The state law does not prohibit the use of voice-operated or hands-free devices.

"The Toledo ordinance doesn't cover everything the state law does," Sergeant Heffernan said.

"For example, if a juvenile is talking on the phone, that's a provision in the law that's not in the Toledo ordinance, so we would cite the [state law]," he said.

Sergeant Heffernan said that the department's police officers, if they are going to issue a citation for texting while driving, likely will use the city ordinance first, unless the offense only falls under the state law.

Officers can't, he said, issue a citation twice -- once under city ordinance and again under state law -- for the same violation.

Oftentimes, officers in Toledo don't use the city ordinance, but rather cite someone for assured clear distance because "oftentimes they've already gotten into an accident."

If someone is driving too slow or too fast and drifting between lanes, officers "can't really prove that they were on the phone because we're usually behind them. In a case like that, we'll cite them for attention to operation," Sergeant Heffernan said.

In the city, texting while driving is a primary offense, meaning police can pull people over for violating the ordinance.

In municipalities without their own ordinance, texting while driving would fall under state rule as a secondary offense, meaning an officer must have another reason to pull over a driver.

The misdemeanor offense could result in a $150 fine and a 60-day driver's license suspension; a second violation is a $300 fine and a one-year suspension.

Michigan law prohibits drivers from reading, typing, or sending a text message while driving, according to the state's Office of Highway Safety Planning.

Texting while driving is a primary offense and violators can face a fine of $100 for the first offense and $200 for subsequent violations.

Although Ohio's law goes into effect today, there is a six-month grace period where police could issue warnings.

"I don't like to be in that risk," said Alex Foulke, 17, a senior at Toledo Tech.

The Foulke youth said he doesn't text and drive and doesn't even like to be in a car with someone who is.

As he's been on the roadways, he said he's had some close calls with cars crossing into his lane or driving at inconsistent speeds.

"When I drive past them, I look and I see they're texting, and I'm like, 'Ugh,' " the teen said.

"No text is that important that you have to put your life in danger."

A classmate, Jose Ruiz, 17, also a senior, said most accidents he hears about seem to be the result of someone driving and texting.

He, too, said he does not text as he's driving because it's dangerous, but if he were in the car with a driver who was distracted by a cell phone, he might not necessarily speak up, either.

"I'd put on my seat belt," he said. "It always makes me nervous and I'm on the edge of my seat."

The teenagers said they don't think many of their classmates are aware of the new law.

The Foulke youth said he heard about it from both of his parents -- his dad brought home information from work and his mother talked to him about the hazards after a friend's son died because of a distracted driver.

To increase awareness, Highway Patrol troopers and AAA officials visited Clay High School on Thursday to discuss the new law and give students the opportunity to use a texting-while-driving simulator so they can "appreciate how much texting distracts drivers."

Meeting to discuss community policing

by Aisha Al-Muslim

Nassau Legis. Dave Denenberg (D-Merrick) plans to host a meeting on community policing and quality of life issues in his district, which includes Bellmore, North Bellmore, Merrick and parts of Freeport, North Merrick and Wantagh.

Guests include commanding officers from the Nassau County Police Department's First and Seventh precincts. The police will discuss recent burglaries, staffing, crime, traffic enforcement, neighborhood issues, problem-oriented policing and the goals of law enforcement. Most of the meeting will be reserved for questions and answers.

The meeting will be Sept. 6, at 7:30 p.m. in the North Merrick Library at 1691 Meadowbrook Rd.

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