James Holmes looks over papers with his attorney, Daniel King, during a June 4, 2013, court hearing.
James Holmes looks over papers with his attorney, Daniel King, during a June 4, 2013, court hearing.

The defense in the Aurora movie theater shooting case, still angered over an apparent law enforcement leak of information about a crucial notebook, has asked the judge to appoint a special prosecutor to investigate.

In a motion filed last week but not made public until Monday, the defense says Arapahoe County District Court Judge Carlos Samour could also prevent several police officers from testifying at trial or throw out the death penalty as an option in the case because of the leak. The new motion comes after the defense's efforts failed to put Fox News reporter Jana Winter — who broke the story about the notebook — under oath to testify about her sources.

In its motion, the defense says gunman James Holmes "will be the one to bear the consequences of the government's violations of the pre-trial publicity order and the law" if no further action is taken.

The fight over who told Winter about the notebook is one of the longest-running battles of the court case. Five days after the July 2012 shooting that killed 12 and wounded many more, Winter reported that a notebook Holmes mailed to his psychiatrist just prior to the attack contained violent images and plans for an attack. She cited two unnamed law enforcement officials.


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Defense attorneys said the leak was a violation of the gag order in the case and filed a motion for sanctions that resulted in multiple officers who saw the notebook being quizzed under oath. When none of the officers admitted to being the source of the leak — or, even, of seeing inside the notebook well enough to read the words on the page — Holmes' attorneys tried to put Winter on the stand.

The effort ended in May, when the U.S. Supreme Court declined to review a New York court ruling that found Winter was protected by that state's reporter shield law. Samour then denied the long-pending motion for sanctions.

The new motion claims the Arapahoe County district attorney's office, which is prosecuting the case, "has failed to employ its resources to vigorously pursue the source of the leak or identify any perjured testimony despite the serious issues at stake."

The defense says a special prosecutor should be appointed to investigate the leak. It also suggests tossing out the death penalty or excluding the officers who have previously testified about the notebook — which includes one of the case's supervisory detectives — from testifying at trial.

Prosecutors have yet to respond to the new motion.

Holmes is scheduled to go on trial in December.