Letting the Sun Shine on Columbine

Court allows new views of the murder rampage of two teenagers

From the Spring 2004 issue of The News Media & The Law, page 32.

By Andrew Brown

Nearly 1,000 people converged upon the Colorado State Fairgrounds in late February to view evidence collected in the shootings at Columbine High School. Often a scene of agricultural, artistic and athletic exhibitions, the 100-acre facility hosted a long-awaited exercise in open government.

Thousands of pieces of evidence from the April 20, 1999, shootings at Columbine High School were on display. Encased in glass were the guns Eric Harris and Dylan Klebold used to kill 12 fellow students and one teacher — the two then committed suicide — and unexploded propane tank “bombs” that served to show how far the teens might have been willing to go.

The massive disclosure of evidence by the Jefferson County Sheriff’s Office coincided with the court-ordered release of Colorado Attorney General Ken Salazar’s investigatory report on the sheriff’s department’s actions with regard to the Columbine tragedy.

“With few and narrow exceptions, the government must conduct its business in the open,” Judge R. Brooke Jackson of District Court in Golden, Colo., ruled in May 2002. “Not only does that promote more honest and competent governmental actions, and a more informed public, but it gives the public the opportunity to discover, question, criticize and ultimately seek to remove individuals or practices that are not serving the public well.”

Although the release of public information relating to the school shootings in Littleton, Colo., has been slow, with information still trickling out five years later, open government advocates say the Colorado Open Records Act has been strengthened through these rulings.

“Virtually everything that’s known to the public about Columbine is known as a result of these open records requests,” said Alan Gilbert, Colorado solicitor general and co-chair of the Columbine Open Records Task Force.

Some of the earliest records that were ordered to be unsealed were made public nearly a year after the shootings. In Fleming v. Stone, a case brought by the families of three of the victims, Jackson held that school surveillance videotapes and police radio communications were public records under the state Open Records Act. The judge further ordered the release of a videotape created by the Littleton Fire Department in the immediate aftermath of the shootings.

“There is an undeniable and compelling public interest in making materials relating to the Columbine shootings available to the victims and their families,” Jackson wrote in April 2000.

Nearly two dozen teachers and students were wounded during the attack, with many left with life-altering injuries. Patrick Ireland is still recovering from being partially paralyzed after being shot in the head. Mark Taylor, featured in the documentary “Bowling for Columbine,” has a 9-mm bullet next to his aorta. Anne Marie Hochhalter, Richard Castaldo and Sean Graves all have serious spinal-cord injuries.

Then-Sheriff John Stone was also ordered by Jackson to release more than 30,000 pages of documents relating to the Sheriff’s Office’s final investigatory report. Stone made the information available to the victims’ families in April 2000. The year-long statute of limitations to file a lawsuit for misconduct by public officials was scheduled to expire within days.

The report included ballistics reports, school surveillance camera tapes, police dispatches and 911 transcripts from hundreds of calls, which were initially defined by police as “criminal justice records” exempt from disclosure under the state’s open records law. Jackson wrote that the tapes would “address what was occurring inside and outside the school, including the responses to these events by law enforcement personnel, witnesses, the media and the public at large.”

Another battle for public disclosure lasted more than two years. Denver’s Rocky Mountain News sought Klebold’s autopsy report, a record that is typically public under the state’s open records law, to determine if he did in fact commit suicide, as reported by police. Jackson held that graphic details of autopsy reports could be withheld if disclosure would cause “substantial injury to the public interest,” but still released the report on Klebold. “Harris and Klebold gave up whatever privacy rights they might have had . . . when they committed the crimes,” Jackson ruled.

The autopsy reports of victims Daniel Rohrbough, Isaiah Shoels and the two killers, as well as autopsy summaries for the other 11 victims, were made public in other rulings, according to the Jefferson County Coroner’s Office.

The public’s interest in the Columbine shootings was not limited to their aftermath. There were allegations that the Jackson County Sheriff’s Office had long known about the danger posed by Harris and Klebold, and had not taken sufficient action against the two.

In April 2001, Jackson awarded CBS News a draft of the 1998 search warrant affidavit prepared by Officer Mike Guerra, a Jefferson County bomb squad investigator. The warrant was drafted after a pipe bomb that matched bombs Harris reportedly made and boasted of on his personal Web site was found near a local bike path. The warrant was never made final or served.

In October 2002, Jackson also ordered the release of records from the juvenile diversion program Harris and Klebold were ordered to participate in for breaking into a van. According to the records, the pair did so well in the program they were exempted in February 1999 from the final month.

The Klebold family, citing privacy concerns, had sought to keep the information sealed. But Jackson disagreed, saying there is “a legitimate interest in exploring publicly whether the diversion program somehow failed in this instance.”

In May 2003, Jackson also ordered the release of police reports chronicling the boys’ criminal trespassing arrests, for the van break-in and the stealing of a cache of tools. Records released in October 2003 include more chilling videos recorded by the two killers. The 15-minute “Rampart Range” video, made just six weeks before the shootings, shows Harris and Klebold practicing their shooting in a rural mountain setting. The video was released by the Sheriff’s Office.

“A tremendous amount of information was ordered disclosed, which has shed light on the conduct of government officials,” said Steven Zansberg, attorney for CBS and The Denver Post. “There is a profound public interest in investigating Jefferson County for the events of that day.”

Perhaps the most telling of the records released so far is Attorney General Salazar’s investigation into the Jefferson County Sheriff’s Office. According to the report, released in February, the sheriff’s department had 15 interactions with Harris and Klebold over the two years prior to the shootings.

Beginning in 1997, a family that lived next door to the Harrises filed 13 complaints against Eric for allegedly cracking their car’s windshield with an ice-ball, breaking a garage window with a paint-ball gun, and making death threats via the Internet against their son, Brooks Brown. The family even gave a printout of Harris’s Web site rants to the sheriff’s office — a copy of the printout was included in Salazar’s report — which included threats of suicidal carnage via bombings and shootings.

“There should have been a search warrant executed on the Harris home,” Salazar told The Denver Post, in a Feb. 27 story.

Not all information relating to the tragedy has been released, however. In January, the state’s Court of Appeals overturned a ruling by Jackson that made public certain writings and videotapes made by Harris and Klebold.

The Denver Post argued that portions of a videotape made by the teens had already been transcribed verbatim in Time magazine. Excerpts of their writings could also be found in the biographies section of the final report of the Sheriff’s Office. If significant portions of the materials are publicly available, it should all be open, the newspaper argued.

The appeals court did not agree, ruling that the records could be considered criminal justice records — exempt from the state open records law — and sent the case back to Jackson for further review. Jackson must determine if the tapes and writings can be disclosed, or if they will remain protected as criminal justice records.

Zansberg said in the Post Jan. 30 that Jackson should rule whether the records were being held by the sheriff for the ongoing “use and exercise of an official function.” If not, then Jackson must release the records.

Both Sheriff Stone and his successor, Russ Cook, have left the Jefferson County Sheriff’s Department. Stone did not seek reelection, and his term expired in January 2003. Cook was elected, but resigned following personal problems.

In March 2002, the Rocky Mountain News sought records of Stone’s e-mail messages to discover how his department responded to the shootings. County officials asked for $1.07 million to fill the request, noting that payment wouldn’t even guarantee disclosure. The price tag, officials said, was necessary to bypass an electronic security system and recover costs to find out if e-mail was covered by the Colorado Open Records Act.

The News requested a fee-waiver, was denied, and refused to pay the exorbitant sum. Marc Flink, counsel to the paper, said the News didn’t pursued the records any further.

Most observers say Ted Mink, who was appointed sheriff in July, has done a reasonably good job releasing public records and making his department as transparent as possible in the wake of allegations of impropriety. Others say there is still more to be seen and more to be learned.

“There are still missing files, lies, secret records and coverups,” said Randy Brown, a member of the Columbine Open Records Task Force and a neighbor to the Harris family, in a February story in The Washington Post.

Depositions given by Harris and Klebold’s parents remain sealed under the order of U.S. Magistrate Judge Patricia Coan, who later called for the records to be destroyed. Five of the victims’ families settled their civil suits with the killers’ parents before their cases went to trial, so the depositions are not public and are no longer needed, Coan said.

That opinion has been appealed, and is currently before Judge Lewis Babcock of U.S. District Court in Denver. The victims’ families heard the depositions in court, but are prevented by a gag order from disclosing what was said.

Also still withheld are more than 200 pages of interviews with Columbine High School staff, all public employees, conducted shortly after the shootings. Those records have been partially sealed under attorney-client privilege, and are stored at the Colorado state archives with thousands of other pieces of evidence from the shootings.

In late February, Salazar announced that anything not sealed will be accessible to the public. After five years and countless legal battles, the sun was finally shining on much of the Columbine High story.

“We should learn as much as we possibly can from this horrific tragedy,” Salazar said in a statement. “It is being opened up for one simple reason: that is so that you, the world, can see the massive amount of evidence that was collected.”