Press mulls an appeal

By: David Noack

Sealing of Columbine autopsy reports may prompt action

The Denver Post and the Denver Rocky Mountain News are deciding whether to appeal a judge’s order sealing the autopsy reports of 15 people killed in April during the widely reported shooting rampage at Columbine High School in Littleton, Colo.
Judge Henry E. Nieto’s ruling was issued May 28 in response to a joint petition by the Jefferson County coroner, the district attorney, and members of the victims’ families. The petitioners argued that disclosing the autopsy reports’ contents would harm the investigation, inflict pain on the families, and contribute to a media frenzy that would delay the healing process in the community. The petition was filed May 26.
Members of the families of 12 of the 13 victims joined the petition to keep the reports sealed. Relatives of 10 of the victims appeared in court, and six of the family members testified. During the court proceedings, the judge allowed lawyers for the parents of Dylan Klebold, one of the presumed killers, to also join in the request.
It’s not clear when the news executives will make a decision on an appeal. They can appeal to either a midlevel appellate court or the Colorado Supreme Court. The newspapers are trying to balance upholding the state’s open records law with not appearing to seek the autopsy reports simply to publicize gory details of the killings.
The Post and the News ? along with 16 other news organizations, including Reuters, the Los Angeles Times, The Washington Post, The New York Times, and Newsday ? had asked the county coroner’s office for access to the reports.
Under state law, autopsy reports are public records, but they can be sealed if a judge determines that allowing the information to become public would do “substantial” harm to the public interest.
John Temple, editor of the Denver Rocky Mountain News, says: “We respect the parents’ point of view. ? But we believe the public interest would be best served in a case of such public importance by informing the public, and we would treat the personal details with discretion. That’s not why we wanted the autopsies, for some prurient interest. But the questions of how the victims died, and where they died, and whether speedier response could have saved them are of vital public importance. The nation is debating it, Congress is debating it, and people should be debating based on facts, and know what really happened.” He says that if there is not going to be a criminal prosecution, the autopsies should be made public.
“I don’t understand at all how we can argue that [the] Eric Harris and Dylan Klebold autopsies aren’t in the public interest,” says Temple. “These are the [presumed] killers. How did they die? Did one shoot the other? The 13 victims you could at least understand ? there is a lot of pain. But the killers, that makes no sense, and purely as a matter of law and as a matter of what’s in the public interest, we respectfully disagree.”
Tom Kelley, attorney for The Denver Post, says the judge was “fighting off tears,” and it was clear that he wanted to do something for the families. “He realized he had a problem in that he had to find some harm to the public interest not envisioned by the [state] General Assembly when they declared autopsy reports open. So he said that, in this case, it’s like all of us have lost a child, all of us are going through a public grieving process.”
Kelley says a key issue in deciding whether to appeal is to avoid appearing insensitive to the concerns of the families and seeking the right of access under the law.
“That has been very much on our minds before we went out there to appear and oppose this. ? The case is too important, and there are too many unanswered questions,” says Kelley.
Marc Flink, an attorney representing the News, says the judge tried to balance the needs of the parents and family members of the people killed with the public’s right to know.
“I think this case is unusual. There have been other decisions of the state courts sealing autopsy reports. [In] the Jon Benet Ramsey case [in Boulder, Colo.,] ? there was a protracted period where the autopsy was sealed and then released in piecemeal fashion. ? In that circumstance, the injury [in releasing the autopsy report] was to the investigation of the crime [in] that there would be certain facts in the autopsy that only the killer or those close to the killers would know,” says Flink.
Part of the petition from the coroner and district attorney reads, “The release of the graphic autopsy reports ? would serve no useful purpose; would add to the media firestorm ? which these tragic and unfortunate events have created and continue to create; would cause great emotional harm or distress and embarrassment” to the families.
Attorney Michael J. Norton, who represented 12 of the 13 families at the hearing for free, says the shooting spree has attracted national and international attention and involves more than the families directly involved.
“I think it’s a good decision. I think it’s the right decision. Under the circumstances, I don’t see any good that can come from it, at least much useful good that can come from the autopsy reports. I understand there are these questions that the press keeps circulating. I don’t think for the benefit of the families, the people that are involved, or frankly for the community, it serves any real useful purpose in trying to second-guess ‘what-if’ kinds of questions,” says Norton.
He considers it “elitist” for newspaper editors to think they are the only ones who can read an autopsy report and make judgments.
The Post and the News have both editorialized against the judge’s decision.

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?(copyright: Editor & Publisher June 12, 1999) [Caption]

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