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Aug 23, 2012 3:25 PM by CBS News

James Holmes' school records focus of hearing

A judge will hear arguments Thursday about whether the Colorado theater shooting suspect's university records can be turned over to prosecutors.

James Holmes, a former neuroscience doctoral candidate at the University of Colorado, is expected to attend the hearing. Prosecutors are seeking copies of 100 pages of non-medical education records subpoenaed by prosecutors and turned over last week by the school to Arapahoe County District Judge William Sylvester. Defense attorneys are seeking to suppress the subpoena and have asked that nobody, even Sylvester, examine the documents.

Holmes is accused of killing 12 people and wounding 58 others in a July 20 shooting at an Aurora theater.

Defense attorney Tamara Brady's legal reasoning about why Holmes' educational records should be off limits is unavailable. That portion of the court file remains sealed.

Prosecutors said in court that they need the documents to gain access to a notebook reportedly containing violent descriptions of an attack. The notebook reportedly was in a package sent to CU psychiatrist Lynne Fenton.

Court papers previously filed by defense attorneys for Holmes disclosed that prior to withdrawing from the university, he was a psychiatric patient of Fenton, CBS News reported. Fenton, sources told CBS News, became concerned enough to notify campus police about Holmes, and his name was brought to the attention of the university's Behavioral Evaluation and Threat Assessment team, or BETA for short. What was done with the information from there remains in question.

Holmes was seen by at least three different mental health professionals from the University of Colorado Denver Anschutz Medical Campus during his time as a neuroscience Ph.D. student, even while investigators believe he began the initial planning to carry out the massacre, CBS News reported.

An official who has been briefed on the investigation and spoke to CBS News on the condition of anonymity said Holmes' statements to university officials as well as their notes and reports will raise questions about whether more could have been done before the shooting.

"The question, what did the university know, and when did they know it, is still the untold part of this story," the official said.

Defense attorney Daniel King during court hearings said the notebook is protected by a doctor-patient relationship. King claims that Holmes is mentally ill and sought Fenton for help with that illness.

Fenton is expected to testify at a hearing Aug. 30.

Former Denver Deputy District Attorney and law professor Karen Steinhauser said arguments over the records are part of both sides gearing up for a trial over Holmes' sanity.

"They know it's not a question of who did this," Steinhauser said. "This is not a question of self-defense. They know that the only possible defense is that he was not sane at the time."

School records don't have the same legal protection as communication between a doctor and patient. But Steinhauser said prosecutors would have to tell a judge why they want them.

Steinhauser said the school records, which could include emails, might help prosecutors establish that Holmes implicitly waived his right to privacy if he talked about some of the same things he spoke to his doctor about.

The university records could also contain his school application, recommendation letters, emails between professors about their impressions of Holmes, as well his grades and progress reports on his research. Educational records released by the University of Illinois, Urbana-Champaign, a school Holmes considered attending, contained such information including a letter of recommendation that describes Holmes as having "a great amount of intellectual and emotional maturity."

"They want those records in the hopes that it could help them build their case that these are not the actions of an insane man," Steinhauser said.

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