By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


During the initial minutes of Saturday, July 21, 2012, and only moments after the commencement of a special midnight showing of the Batman movie, Dark Night Rises, James Holmes, armed with an arsenal of weapons and dressed body armor, walked into the Century 16 Theater in Aurora, Colorado, announced the Joker was present, and began indiscriminately shooting moviegoers. In the horrible aftermath, a dozen people lay dead and nearly five dozen more were wounded, some critically. There would have been many more victims had Holmes’ AR-15 assault rifle not jammed.


Anytime a tragedy like this occurs, the media and others not only explore why the killer did what he did but they also try to find someone or something to blame. That pattern became instantly obvious in the Aurora tragedy after it was learned less than a week after the mass shooting that Holmes had sent a package of material to University of Colorado staff psychiatrist Dr. Lynne Fenton.


The media and all the “experts” they line up for on-air analysis, immediately began to question how much Fenton knew, when she knew it, and did she have a professional obligation to disclose it. The mailroom package is now under court-ordered seal as prosecutors and defense attorneys argue over its psychotherapist/patient privilege and its admissibility in court.  The media meanwhile is desperately trying to force the release of the contents of the packet.


On Tuesday, July 31, a local Aurora television station, citing unnamed sources, reported that in June, Dr. Fenton had become so concerned about Holmes’ behavior and psychological demeanor that she contacted the campus-wide Behavioral Evaluation and Threat Assessment (“BETA”) team about him. Following the lead of the local television station, national media outlets reported that BETA took no further action on Fenton’s concern. This fueled the widely accepted, although unsubstantiated, perception that BETA and other university officials had somehow “dropped the ball” and perhaps could have prevented the massacre.



BETA, which was established by Dr. Fenton, is charged with the responsibility of determining when “student action moves from an academic concern only to a broader campus concern.” The program provides that if someone believes a student poses an imminent threat, it should be reported to campus police while all other concerns should be directed to appropriate treatment personnel. Based on public reports, BETA is not an emergency mental health evaluation program geared to detain students with a mental problem. However, Colorado, like most states, does have an emergency mental health intervention law that allows a potentially “dangerous” individual, either to himself or the public, to be detained up to 72 hours for evaluation. To be placed under what is called a “Mental Health Hold,” the individual must be “exhibiting severe symptoms of mental illness.” There is no evidence in the public record that Holmes ever exhibited those “severe symptoms.”


To the contrary, Holmes had purchased an assault rifle, several semi-automatic pistols, body armor and 6,000 rounds of ammunition. As the National Rifle Association will tell you, mere possession of that kind of weaponry, alone, does not indicate a “mental illness” that poses a threat to the general public; and, in fact, will point out that the Second Amendment protects the possession of such hardware. Not even the police could do anything about the legally-purchased arsenal of weapons absent some specific, credible information that Holmes planned to use the weapons in a criminal way.

So was Holmes mad or bad?


Once he dropped out of the University of Colorado medical school, university officials, and even Dr. Fenton, had no obligation, much less a legal duty, to determine the badness/madness issue as it applied to Holmes. She could not, nor could other university officials, track or pursue investigations of a former student absent clear and convincing cause to believe that the student had engaged in criminal wrongdoing that might injure others or had specific plans to engage in such wrongdoing. People cannot be arrested, detained or restrained without reasonable probable cause of either actual or planned criminal activity. Had university officials requested that the police intervene and had the police responded to those concerns by detaining Holmes and placing a 72-hour “mental health hold” on him, and had an ensuing mental health evaluation concluded he did not exhibit any “severe symptoms of mental illness,” there would be a lot of civil liability to pass around to all involved in the intervention decision.


If American citizens could be detained in any manner as a “threat to society” absent actual or planned wrongdoing, then every gun owner in this country could be arrested, particularly those who own and frequently use military assault weaponry. Guns undoubtedly pose a threat to society when in the hands of criminals and/or mentally disturbed individuals. By all accounts there many gun owners who are very enthusiastic about gun ownership.   You can spot them on any firing range in this country. Does that make them “mad?” Certainly not.  And as for being “bad,” the evidence is overwhelming, and, in fact indisputable, that many Wall Street executives, bank CEOs, hedge-fund managers are “bad” people who pose a real threat to society—yet absent probable cause of actual or planned wrongdoing, they can lead their “bad” lives with virtual impunity.


Beyond a doubt, mental illness is real problem in this country. The Surgeon General of the United States estimates that 20 percent of Americans have some sort of mental disorder during their life with 15 percent of them using some kind of mental health service each year. That’s a lot of “mad” people in this country—roughly 60 million. And it is estimated that between 40 to 50 percent of American households own guns—roughly 190 to 300 million guns altogether. That means there are a lot of mentally disturbed people who own guns, many military assault weapons, walking around in this country just waiting for the event that will snap them from a law-abiding life into a world of violence—road rage, high gas prices, line cutting in Wal Mart, or a childish middle finger gesture.


Of course, most will not assume the persona of “The Joker,” yet who can ignore that “going postal” is not a term derived from Postal Service picnics. More than any other industrialized nation in the world, America has a sordid history of incomprehensible mass killings—and, tragically, we remember those who engage in such conduct over those killed by the conduct. The families and survivors of James Holmes’ victims, and the good people of Aurora and a nation in mourning, want to remember the victims but it is difficult when the media constantly posts pictures of Holmes in court with Joker red hair.


This brings us full circle to the issue of what, if anything, prosecutors will be allowed to use in the package Holmes sent to Fenton. There was some sort of psychotherapist/patient relationship between the two. The “psychotherapist’s privilege,” as with most privileges, are recognized in federal courts under Rule 501 of the Federal Rules of Evidence. The same is apparently true in Colorado. The U.S. Supreme Court in 1996 in Jaffee v. Redmond recognized that the psychotherapist/patient privilege is absolute. The court relied upon the two touchstones for recognizing any privilege: “reason and experience.” The Supreme Court adopted the position taken by Seventh Circuit when it heard the Jaffee case: “’Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment.’”


Colorado courts have adopted the Jaffee rule. In an en banc decision, the Colorado Supreme Court pointed out that while privileges do “not exist in common law,” the psychotherapist-patient privilege had been recognized as an “evidentiary privilege” in all 50 states and the District of Columbia. The Colorado court said that the privilege, once attached, not only prohibits “testimonial disclosures” but “pretrial discovery within the scope of the privilege” as well.


Aurora prosecutors can overcome the Fenton/Holmes privilege in one and/or two ways. First, Holmes waived the privilege when he dropped out of the University of Colorado and, thus, was not a patient of Fenton when he mailed the package to her several days before the mass shooting. Second, prosecutors can show “implied waiver” if Holmes injects “his physical or mental condition” as an affirmative defense at his trial. Put simply, if Holmes elects to pursue insanity as a defense, prosecutors could compel Fenton to testify about whether Holmes fits the legal definition of insanity. Prosecutors will tread lightly here because Fenton may possess information that supports an insanity defense. It should be kept in mind, however, that a person can be mentally disturbed but not legally insane. Thus, prosecutors may find evidence in Fenton’s files that while Holmes was mentally disturbed, he possessed the faculties to plan and execute the horrific shooting massacre thereby eliminating an insanity defense.


We do not believe that Dr. Fenton or any other University of Colorado official could have done anything to prevent the Holmes tragedy. And we find the media’s rush to judgment on these officials to be both disturbing and offensive. There are situations in life, some of them terrible, in which there is no one to blame except the individual. Dr. Fenton’s personal and professional life has been turned upside down by this tragedy. It’s time for the media to tame down the wild speculation and let the court do its job.


NOTE: As we “go to press” with this post, the news media is reporting that Dr. Fenton reported her concerns about Holmes to a University of Colorado campus police Officer. What Dr. Fenton told the officer and what he did with the information is still subject to public speculation. If this report bears fruit, it will be another example of the media’s rush to judgment in trying to find someone to blame for an inexplicable tragedy.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization