The Aurora Police Department and two of its officers are fighting subpoenas for internal disciplinary files being sought by the defense in the movie theater shooting case.
That is just one of the battles expected Tuesday in the first court hearing in the case in nearly two months. Attorneys on both sides are also expected to fight over whether the second psychiatric evaluation of James Holmes — which has delayed the trial — can be videotaped. The judge in the case is also expected to set a new trial date, likely in December.
Defense attorneys have requested the files on Officers Brian Elwood and Joshua Schol, both of whom could be called as witnesses at trial. In 2008, internal-affairs investigators concluded both officers had been untruthful in unspecified matters, according to court motions.
Prosecutors told defense attorneys about the finding, which prompted the defense to subpoena all of Elwood’s and Schol’s internal records.
Motions from both lawyers for the city of Aurora and lawyers for the officers argue that is too broad of a request and that the defense hasn’t shown that any of the records are relevant to the case. Neither officer has emerged in court records or testimony so far as pivotal to the theater shooting investigation.
Meanwhile, attorneys are also prepared to again fight over the terms of a court-ordered psychiatric evaluation of Holmes. The psychiatrist who will conduct the examination — ordered after the first exam was deemed deficient — has asked to videotape it.
Defense attorneys have objected, saying that Holmes wasn’t told the exam might be recorded when he pleaded not guilty by reason of insanity.
“Videotaping is likely to interfere with the integrity of the examination,” the defense argued in a motion.
But, in a letter to the judge, the psychiatrist who will conduct the second exam said that Holmes should be used to being recorded.
“In this case, the defendant has been videotaped 24 hours a day, 7 days a week, since the time he was detained,” the psychiatrist wrote.
Holmes is charged with 166 counts of murder, attempted murder and other offenses in connection with the attack on the Century Aurora 16 movie theater in July 2012. Twelve people were killed in the attack and another 70 wounded.
Holmes could be sentenced to die if convicted.
John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/john_ingold