Free Reply - District Court of Colorado - Colorado

Case 1:01-cv-02076-LTB-PAC

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Filed 03/06/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Case No. 00-cv-00808-LTB-PAC BRIAN H. ROHRBOUGH, et al. Plaintiffs, v. WAYNE N. HARRIS, et al. Defendants. _____________________________________________________________________ Civil Case No. 01-cv-02076-LTB-PAC MARK ALLEN TAYLOR, Plaintiff, v. SOLVAY PHARMACEUTICALS, INC, Defendant.

LIMITED REPLY TO POSITION STATEMENT OF THE JEFFERSON COUNTY SHERIFF AND JEFFERSON COUNTY SHERIFF'S OFFICE CONCERNING DISPOSITION OF REMAINING MATERIALS IN THE "EVIDENCE ROOM" ___________________________________________________________________

Colorado Attorney John Suthers files this limited reply to the comments contained in the Jefferson County Sheriff's position paper filed in this matter

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concerning whether the Court can allow Dr. Del Elliott and his colleagues access to the materials in the Evidence Room, specifically the deposition transcripts, without releasing the documents to all members of the public.
I. This Court, as custodian of judicial records, has the discretion and authority to determine who has access to same.

"Every court has supervisory power over its own records and files . . . ." Nixon v. Warner Communications, Inc. 435 U.S. 589 (1978). The Court has broad supervisory authority over records in cases conducted before it; for example, the Court has the authority to enter a protective order, just as it did in this case. Although there was a protective order entered, the Court had the authority to appoint a Special Master who had access to the records for a limited purpose. The Attorney General simply requests that the Court, as the Chief Justice of the United States District Court for Colorado and custodian of the records in these cases, allow Dr. Del Elliott and two of his colleagues to review the deposition transcripts for the limited purpose described in the Attorney General's previously filed position paper. The Court also has the authority to allow limited access if the records are found to be federal "records" pursuant to the Federal Records Act, 44 U.S.C. § 2901 et. seq. As noted by the National Archives and Records Administration ("NARA") in its position paper in this matter, NARA typically accepts physical custody of court records any time up to five years after case closure, but typically accepts legal custody of court records twenty years after case closure. As stated in the position

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paper: "When NARA has physical custody but the agency retains legal custody, NARA maintains and safeguards the records, but the originating agency continues to make the determinations of access to the records." (Statement by the National Archives and Records Administration, Document No. 436, filed 2/09/07, p. 3). NARA recommends that if the Court decides to transfer the records to NARA, that it transfer physical custody first, with legal custody to pass to NARA at a later time in accordance with NARA's accepted practice. Id. Thus, even if the Court finds that the records are governed by the Federal Records Act and transfers them to NARA, the Court would continue to be the legal custodian entitled to make determinations of access to the records. The Court may limit or grant access as it deems appropriate in accordance with law. II. By Allowing Dr. Elliott to Review the Transcripts, the Court is not Opening the Documents to Examination by Other Members of the Public The Sheriff suggests that if the Court allows some experts to review the transcripts, then the Court must allow access to the documents by everyone else who wants access. He concludes that, similar to his position on the Colorado Open Records Act (CORA), the records are either public or they are not. The Sheriff's argument is not persuasive on several counts. First, the records in this case are not governed by CORA. They are documents in the possession and control of the United States District Court by virtue of two cases filed in that court. Second, the only case relied on by the Sheriff in his position statement, Anderson v. Home Ins. Co., 924 P.2d 1123 (Co. App. 1996), dealt with that

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section of the CORA which restricts the public's right to access to court records if such access is prohibited by court rules or orders, in effect actually affirming the authority of the courts to make rules or orders concerning access to their own records. The court in Anderson analyzed a court rule that allowed a court to limit access to court records if the harm to a person's privacy outweighed the public interest. In that case, the court concluded that even though the parties in a civil case had stipulated and specifically agreed to an absolute confidentiality order for any part of the file, the court records should be available to the plaintiff in an unrelated case against the same defendants. Id. at 1128. The court in Anderson went on to note that the lower court had the power, however, to limit access to certain, selected documents within the record if the evidence supported such a ruling. Id. The court recognized the inherent power of the court to control access to court documents and to allow for limited access as appropriate. (Although Anderson suggested limiting access to certain documents, the same reasoning supports the ability of a court to limit access to a certain person if the evidence supports such a move.) The Sheriff has failed to cite any case law to suggest that the Court does not have the power or authority to delineate who might have access to court records. Furthermore, the Sheriff has recognized his own discretion to control access to records under the Criminal Justice Records Act and his own ability to consult with experts regarding evidence in this very complex case. In evaluating whether to release

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the videotapes made by Harris and Klebold to public view, he allowed the tapes to be reviewed by members of the FBI's Behavioral Analysis Unit (BAU) to assist him in deciding the proper course of action. (See Exhibit 1, Assessment of "The Tapes", FBI, June 15, 2006.) While admittedly the persons who were allowed access to the tapes were law enforcement personnel, nevertheless, the Sheriff was willing to allow selected others outside of his office to view material that he subsequently withheld from the public. We are not suggesting that the Sheriff should not have used the resources of the BAU; in fact, it was a smart and helpful move for him and assisted him in making a crucial determination in the matter. However, the Sheriff's decision to seek outside expert help in a specialized area underscores the wisdom of allowing experts, those who have devoted their careers to study and research in a certain area, to review materials for the purpose of assisting others in recognizing and preventing violence in the future. It seems that the Sheriff, of all the people involved in this case, would understand the benefit that would result from a comprehensive study by an expert in the field of what caused two young men to plan and execute such a bone chilling mass murder. WHEREFORE, the Attorney General, reiterates his request that the Court allow access to the records in question to Dr. Del Elliott and two of his colleagues for the purpose of a comprehensive study of the cause of the Columbine tragedy and implications for the future.

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Respectfully submitted this 6th day of March, 2007.

JOHN SUTHERS Attorney General /s/ William Allen WILLIAM ALLEN MICHAEL McCORMICK MEGAN RUNDLET Assistant Attorneys General Office of the Attorney General Attorneys for Amicus Curiae Colorado Attorney General John Suthers 1525 Sherman Street Denver, Colorado 80203 Telephone: 303-866-5325

CERTIFICATE OF SERVICE I hereby certify that on this 6th day of March 2007, I electronically filed the foregoing Limited Reply of Colorado Attorney General John Suthers with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses and via U.S. Mail, postage prepaid and addressed to the following: Barry K. Arrington [email protected] Writer Mott - [email protected] A. Bruce Jones - [email protected] Mark F. Kennedy - [email protected] Roger F. Johnson - [email protected] Marc D. Flink - [email protected] Franklin D. Patterson - [email protected] C. Michael Montgomery - [email protected] Gregg E. Kay - [email protected] J. Stephen Mullen [email protected]

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J. Andrew Nathan - [email protected] Michelle R. Prud-Homme - [email protected] Michael B. Sullivan - [email protected] Willaim A. Tuthill III - [email protected] Michael R. Waters - [email protected] James P. Rouse, Sr. - [email protected] William S. Stuller - wstuller @celaw.com Mark F. Kennedy - [email protected] James E. Hooper - [email protected] Kerry Atencio - [email protected] Kevin T. Traskos - [email protected] Amy L. Padden - [email protected] Ericka H. Englert - [email protected] Scott Jurdem - [email protected] - [email protected] Heather A. Salg - [email protected] Alaurice M. Tafoya-Modi - [email protected] Craig R. May - [email protected] Special Master Charles Kall Kenney and Kall 3515 S. Tamarac Drive, No. 200 Denver, CO 80237 Randy and Judy Brown 8003 Vance St. Littleton, Co. 80128 Benjamin E. Colkitt, III 2303 E. Dartmouth Ave. Englewood, Co. 80110 John W. DeCamp DeCamp Legal Services, P.C. 414 South 11th St. Lincoln, Nebraska 68508 Richard Lee Everstine Robert Patrick Ingram Dickinson, Prud-Homme, Adams & Ingram, LLP 730 17th St. No. 730 Denver, Co. 80202

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Geoffrey N. Fieger Fieger, Fieger, Schwartz & Kennedy P.C. 19390 West Ten Mile Road Southfield, Michigan 48075 Alan Kaminsky Wilson, Elser, Moskowitz, Edelman & Dicker 150 East 42nd St. New York, New York 10017-5639 Ronald V. Miller Miller & Zois 7513 Ritchie Highway Empire Tower, Suite 615 Glen Burnie, Maryland 21061 Sharon Eubanks Office of Legislative Services State Capitol, Room 091 200 East Colfax Ave. Denver, Co. 80203 /s/ Sally Ott_________________________

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