Aug 19, 5:08 PM EDT

Defense: School may have withheld Holmes records


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DENVER (AP) -- Defense attorneys in the Colorado theater shooting case say the University of Colorado might have withheld records that show the school failed to act on information it had about defendant James Holmes when he was a student there.

In court filings made public Monday, Holmes' attorneys revive questions about how much the university knew of Holmes' mental problems and whether school officials could have done more to prevent the attack.

They say they have found out that a prosecution witness sent an email to a friend that indicates that before the shooting, someone gave university officials information about Holmes that they did not act on.

It's not clear what that information is or even who the witness is, because the filings are heavily redacted. A university spokesman said Tuesday the records in question are privileged under state and federal law and the school will argue against turning them over to the defense. Lawyers in the case will not comment, citing a gag order.

Holmes, then 25, dropped out of a doctoral program in neuroscience at the University of Colorado, Denver shortly before the July 2012 assault at a movie theater in the Denver suburb of Aurora. Twelve people were killed and 70 were injured in the attack.

Holmes pleaded not guilty by reason of insanity to multiple counts of murder and attempted murder. His attorneys have acknowledged he was the shooter but say he is mentally ill and was in the grips of a psychotic episode at the time.

A university psychiatrist, Lynne Fenton, who treated Holmes before the attack, told campus police prior to the shootings that Holmes had homicidal thoughts and was a danger to the public, according to previously released court records. Fenton told police in June 2012 that Holmes also threatened and intimidated her.

Fenton does not appear to be the unidentified witness in the defense filings, who is referred to as a male.

Holmes' lawyers issued subpoenas for the university records and asked Arapaho County District Judge Carlos A. Samour Jr. to review them in private and decide whether they should be made available to the defense. Samour has not said when he would rule.

Prosecutors are seeking the death penalty in the trial scheduled to start Dec. 8.

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