AURORA, Colo. - Prosecutors have given up their fight to see a notebook that James Holmes mailed to a psychiatrist the night of the Aurora theater shooting rampage, saying that in an anticipated mental health defense the notebook automatically becomes evidence.
Prosecutors made the move during a Thursday morning hearing in Arapahoe county court.
News reports have said the notebook contains Holmes' plans for the theater attack, including drawings.
Prosecutors on Aug. 30 suffered a setback in obtaining the notebook when Arapahoe County District Judge William B. Sylvester ruled that they could not disprove a doctor-patient relationship between suspect James Holmes and University of Colorado psychiatrist Lynne Fenton.
Defense attorneys say Holmes is mentally ill and sought Fenton's help and the notebook is protected by doctor-patient privilege. Sylvester rejected prosecutor arguments that a doctor-patient relationship ended June 11, the last time Fenton saw Holmes.
Holmes is accused of killing 12 and injuring 58 at a midnight showing of the Batman movie "The Dark Knight Rises" at the Century 16 Theater in Aurora.
Meanwhile, prosecutors have filed motions to add 10 charges and amend 17 others. This would make a new total of 152 charges in the case against Holmes.
The defense waived a reading of the new charges in court Thursday. But it's expected documents detailing the news charges will be made available later Thursday.
It is possible that the new charges could revolve around the explosive devices Holmes allegedly rigged inside his apartment. It is possible that situation could be interpreted by the District Attorney as attempted murder.
Additionally, judge hasn't ruled if the notebook Holmes sent to his psychiatrist will be protected as doctor-patient material or if it will be admissible as evidence. It is unclear if this issue will be addressed in court Thursday.
The lead police investigator is expected to take the stand as prosecutors make their case for why they should have access to a notebook that purportedly contains descriptions of a violent attack.
Although two months have passed after the shooting and Holmes has appeared in court several times, he has not yet had a preliminary hearing or arraignment.