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Judge keeps key documents sealed in Colorado shooting case

by Keith Coffman

DENVER (Reuters) - A Colorado judge on Monday ordered that the bulk of key documents detailing the case against accused movie theater gunman James Holmes remain sealed, largely rejecting a request by news organizations to reverse a previous order.

Arapahoe County District Judge William Sylvester did allow for the release of 34 documents, mostly relating to media motions and procedural issues.

But he ordered that the documents media members most wanted to see - affidavits of probable cause, subpoenas, arrest warrants, search warrants, and requests for or court orders for production of records - all be kept under seal.

Prosecutors have charged Holmes with 24 counts of first degree murder and 116 counts of attempted murder in the July shootings at a midnight screening of the Batman film "The Dark Knight Rises" in Aurora, Colorado. Twelve people were killed and 58 were wounded.

Holmes, a 24-year-old former graduate student, was arrested shortly after the massacre. Authorities said he told police he was the "Joker" in a reference to Batman's comic-book nemesis.

He is being held in solitary confinement at the Arapahoe County jail.

Lawyers for 20 news organizations, including The New York Times, The Associated Press, The Denver Post and CBS News last week asked Sylvester to unseal the documents, arguing that such secrecy in a high-profile case "undermines our nation's firm commitment to the transparency and public accountability of the criminal justice system."

Thomson Reuters is not a party to the motion.

Media attorney Steven Zansberg, said the judge's limited ruling "brought much needed transparency" to the case but did not go far enough.

'FAR-REACHING CONSEQUENCES'

"We are disappointed that the affidavits of probable cause remain under seal at this time, but are hopeful that the court will revisit that issue sometime in the not too distant future," he said in a statement.

Prosecutors and defense lawyers have both objected to unsealing the documents, saying it was too early to open the file because the investigation was still ongoing. In most court cases, documents are open to the public.

Public defender Daniel King said at a court hearing last week that Holmes, a former neuroscience graduate student at the University of Colorado, suffered from a "mental illness" and had sought help before the mass shooting from university psychiatrist Lynne Fenton.

The remark was seen by legal experts as a signal that Holmes' defense attorneys may seek to mount an insanity defense on his behalf.

In Monday's ruling, the judge repeated his earlier order preventing the university from publicly discussing its dealings with Holmes because release of that information might violate therapist-patient privilege.

If privileged communications were disclosed it "would have serious far-reaching and potentially irreparable consequences to this case," the judge wrote.

A package that Holmes reportedly sent to Fenton is in the possession of the court clerk and will remain sealed and "inaccessible to anyone," he said.

Whether the package falls under the therapist-patient privilege will be addressed at a hearing later this week.

As in many states, mental healthcare providers in Colorado must warn authorities of potential violent behavior only when a patient has communicated a serious threat of imminent physical violence against a specific target.

The Department of Justice announced today that the United States has entered into a comprehensive, cooperative consent decree with the city of New Orleans to resolve allegations of unlawful police misconduct by the New Orleans Police Department (NOPD). The filing of the consent decree in federal court in New Orleans continues the process of reforming the NOPD and begins federal court oversight of that reform to ensure effective and constitutional policing in New Orleans.

“Today's action represents a critical step forward. It reaffirms the Justice Department's commitment to the highest standards of fairness and professionalism and underscores our determination to work alongside our law enforcement partners to protect not only the safety – but the essential civil rights – of everyone in this country,” said Attorney General Eric Holder.

The consent decree requires NOPD to make broad changes in policies and practices related to use of force; stops, searches and arrests; custodial interrogations; photographic line-ups; preventing discriminatory policing; community engagement; recruitment; training; officer assistance and support; performance evaluations and promotions; supervision; misconduct investigations; and NOPD's system of secondary employment, also known as paid details.

The agreement also requires more transparency by NOPD, encourages greater civilian oversight and increases community interaction and partnerships. The agreement requires close and comprehensive oversight by a court appointed monitoring team, which will periodically submit public reports regarding NOPD's progress. The consent decree will remain in effect until the city demonstrates it has complied with its provisions for two years, or until the monitor's assessment of the agreement's outcome measures demonstrates sustained and continuing improvement in constitutional policing.

“The consent decree, which is unprecedented in scope and nature, is designed to ensure that comprehensive, sustainable reforms are made in the New Orleans Police Department,” said Assistant Attorney General for the Civil Rights Division Thomas E. Perez. “We will continue our partnership with Mayor Landrieu, the police department and the community to ensure that the critical reforms are achieved.”

“This groundbreaking agreement represents a critical milestone in the recovery of New Orleans and a victory for our city, its police department and most of all its citizens,” said U.S. Attorney for the Eastern District of Louisiana Jim Letten. “The consent decree will serve as a blueprint for the New Orleans Police Department, so that it may become a world class police department – one which will be more effective in protecting its citizens against all threats and dangers.

The consent decree is the product of the United States' civil pattern or practice investigation of NOPD, which began in May 2010 and resulted in a comprehensive report in which the department found that NOPD engages in a pattern or practice of misconduct that violates the Constitution and other federal laws. The Justice Department's investigation found a pattern or practice of excessive force, including stops, searches and arrests in violation of the Fourth Amendment. The investigation also found evidence of discriminatory policing based on race, ethnicity, gender and sexual orientation. This civil pattern or practice investigation was separate from the numerous federal criminal civil rights prosecutions of NOPD officers during this time period.

The Justice Department's civil pattern or practice investigation was informed by 12 experts on police practices, including a number of current and former police professionals. The investigation included numerous onsite visits and observations of police-community interactions, including interviews with New Orleans officials, NOPD command staff, supervisors and police officers. Additionally, the department's investigation reviewed more than 36,000 pages of documents and held interviews with residents, community groups and other stakeholders.

The investigation was conducted in accordance with the police misconduct provision (Section 14141) of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) , the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968, and Title VI of the Civil Rights Act of 1964. Under Section 14141 of VCCLEA, the Justice Department has the authority to file civil suits against law enforcement agencies that engage in a pattern or practice of misconduct. The department also has the authority under the Safe Streets Act and Title VI to file suit against law enforcement agencies that engage in discrimination if they receive federal funds.

The city of New Orleans and NOPD cooperated throughout the investigation, from inviting the Justice Department's Civil Rights Division to conduct the investigation, to agreeing to enter a consent decree at its conclusion. For the past several months, New Orleans and the department have been negotiating this consent decree, designed to serve as a blueprint for reforming NOPD. NOPD's implementation of the agreement will be overseen by the federal court, including a court-approved monitor to be jointly selected by the city and the United States.

The Civil Rights Division currently has more active police pattern or practice investigations of law enforcement agencies than any other time in the division's history. Increasingly, these investigations, including the New Orleans Police Department investigation, are initiated at the request of the law enforcement agency itself.

http://www.justice.gov/opa/pr/2012/July/12-ag-917.html

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