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Colo. suspect in court, this time without red hair

CENTENNIAL, Colo. — Seeking to avoid any delays in the Colorado movie theater shooting case, prosecutors gave up their fight to see a notebook the suspect sent to a university psychiatrist and instead argued for a palm print to compare with one found on the inside of a theater exit door.

James Holmes appeared in court Thursday with short brown hair instead of a wild shock of orangish-red hair and seemed more animated than he has been in the past. He smiled and glanced around the courtroom, looking at his lawyers and reporters covering the hearing. He appeared to be moving his mouth but not actually talking.

Family members receiving updates about Holmes from the courtroom said it's all an act by the former University of Colorado, Denver, neuroscience graduate student to appear mentally ill.

"He's just putting on a show," said Greg Medek of Aurora, whose daughter Micayla, 23, died in the shooting. "I don't think he's crazy. He's just evil."

Jessica Watts, whose cousin Jonathan Blunk, 26, died in the shooting was in the courtroom and provided the update to Medek.

"I don't want them rushing anything," Watts said. "I know they're (prosecutors) going to fight for this case."

Holmes faces 152 charges in the July 20 shooting that killed 12 people and wounded 58 others.

Holmes has not entered a plea and won't do so until after a preliminary hearing, where prosecutors are to present evidence supporting the charges. That hearing is currently scheduled to begin Nov. 13.

Holmes' mental health played a role in the prosecutors' decision to drop their pursuit of the notebook, which purportedly contains violent descriptions of an attack. Deputy District Attorney Rich Orman said it's likely that prosecutors would gain access to the notebook, now in the custody of the court, should Holmes' mental health become an issue.

Defendants who plead not guilty by reason of insanity give up some patient-doctor privacy protections.

Orman said he didn't want to delay the case by the appeals that were expected to follow any decision by Arapahoe County District Court Judge William B. Sylvester over access to the notebook.

"We still think we have good and compelling evidence that the notebook should not be privileged," Orman said, adding that because of possible delays, "we're not asking to look at it."

Prosecutors argued for Holmes to submit a palm print in order to compare it with one found at the scene.

Orman said that standard fingerprints could not be used to compare the print found at the theater. Defense attorney Daniel King objected on the grounds that Holmes had already been fingerprinted and being forced to submit an additional print is unreasonable.

Sylvester did not immediately rule on the prosecution's request.

Defense attorneys say Holmes is mentally ill and that the notebook, sent to Dr. Lynne Fenton, shouldn't be released because of doctor-patient privilege.

Prosecutors have argued that the notebook sent in the hours before the shooting and its contents are fair game. Holmes planned to be dead or in prison after the shooting rampage at a special midnight showing of "The Dark Knight Rises," they said, and he had no plans to undergo therapy.

Fenton last saw Holmes professionally on June 11 before seeing him again in court on Aug. 30.

Former Denver prosecutor Karen Steinhauser said prosecutors want the notebook to bolster their case that the shooting was deliberately planned and carried out by a sane person.

But should Holmes plead insanity, prosecutors would have the right to materials, including the notebook, which the examining psychiatrist would have used to form a professional opinion about Holmes' sanity.

If Holmes is considered mentally ill, but competent to stand trial, the notebook could remain off limits to the prosecution.

Steinhauser also said prosecutors might be able to gain access to the notebook through an "implied waiver" of privilege should Holmes talk about its contents to inmates or jail guards.

"They (prosecutors) believe they will ultimately have access to that notebook," said Steinhauser, who is also a law professor at the University of Denver. "They want to keep this case moving."

Holmes has not entered a plea and won't do so until after a preliminary hearing, where prosecutors are to present evidence supporting the charges. That hearing is currently scheduled to begin Nov. 13.