Law Week Colorado: Holmes Report May lead To Fight

By David Forster

A HIGH-STAKES legal battle may soon play out as lawyers try to get their hands on a report detailing the University of Colorado's dealings with James Holmes before his deadly shooting rampage.

            In the days following the July 2012 massacre at an Aurora movie theater that left 12 dead and 58 injured, the university asked lawyers at Peikins Coie to conduct an internal investigation at the Boulder campus, where Holmes was a student.

            The lawyers interviewed dozens of people who had some interaction with Holmes, direct or indirect, including people in campus counseling and security, and reviewed hundreds of thousands of documents and communications. The final report will soon be turned over to university officials.

Given what may be in the report, and what it may reveal about Holmes' mental state and the actions taken by university personnel, it seems certain that lawyers involved in the criminal case and the multiple civil cases may try to get a copy.

But the university doesn't plan on sharing.  Patrick O'Rourke, the University of Colorado's general counsel, said last week that he hasn't yet received any advance requests for the report, but if and when requests are made, his answer will be no.

            The battle over the report will then shift to the courts, where lawyers will have to overcome the university's likely objections, which won't be easy.       Because Holmes admits that he did the shooting, the criminal case turns on his mental state at the time. His attorneys will be looking for anything to support their contention that he was insane when he killed all those people.

 'Highly suspicious'

            Denver criminal defense attorney Pamela Mackey said she has no doubt Holmes' lawyers will try to get their hands on a copy of the CU report.

            "The reason is quite simple;' she said. "The reason society at large is so suspicious of people who claim not guilty by reason of insanity is people fear that the defendant and his lawyers are simply manufacturing insanity as a way to avoid any conviction and punishment."

            “The more information you can gather to show this is not a plea of convenience, to show that this is a young man who is deeply mentally ill,” the better chance his attorneys have of sparing his life, she said. 

            Court documents show that more than a month before the attack, the university psychiatrist treating Holmes, then a neuroscience student, told campus police that he confessed homicidal  thoughts to her, and she thought he was a danger to the public.

            The psychiatrist also told police that Holmes had stopped seeing her and had been threatening her in text messages and e-mails. Police deactivated Holmes' keycard access to secure areas of the university's medical campus buildings.

            What Holmes told the psychiatrist, and whether campus police took steps to further investigate Holmes, has not yet been made public.

            To the extent the CU report sheds more light on what transpired, it could he in Holmes' defense, Mackey said.

            Denver criminal defense attorney Dan Recht, a former Colorado public defender, said he sees no downside for Holmes' lawyers in requesting a copy of the report.

            "There could easily be information in this investigative report that would mitigate against the death penalty or could be usable to reinforce the notion that he was insane," he said. "What if it says he begged for he but because of snafus in the system didn't get the he he needed. Or the internal investigation could itemize things about  Holmes that lends additional credibility to his being insane:'

            "Any shred of evidence would be helpful” he said.

            The report could provide the defense with more evidence to say, "Look, we're not making this up folks. We have proof that this young man was getting increasingly mentally ill as time went by;" Mackey said.

 Duplicate information?

            Whether prosecutors will seek a copy of the report seems less certain.        The police and the district attorney's office have conducted their own investigations and likely interviewed the same people and reviewed the same documents as the Perkins Coie lawyers. So unless there's reason to suspect the report contains significant evidence they haven't already uncovered, prosecutors are not likely to go through the hassle of trying to getting a copy, said Karen Steinhauser, a former Denver prosecutor who now practices criminal defense.

            Criminal defense lawyer Craig Silverman, who as a Denver prosecutor in the 1980s sent convicted killer Frank Rodriguez to death row, agrees. "They already have more than enough evidence," he said. "They are swimming in a pool that's full of evidence, and this just adds more - this report could do is create further complications," he said.

 Limiting access

            Whoever does the asking, getting a copy of the report will not be easy. The university will raise multiple objections, including attorney-client privilege, attorney work-product privilege, doctor-patient confidentiality and anything else its lawyers can think of to keep this report under wraps. The university has it's own potential liability to worry about.

            These objections are not insurmountable, but overcoming them will be difficult and likely involve treading into some complex legal gray areas, Recht said. For example, Holmes' lawyers could argue that the attorney-client privilege applies only to the university, which hired the law firm to conduct the review, and not to the campus employees interviewed for the report. Mackey said this is an argument she would make. 

The university will argue against taking such a piecemeal approach to the report, that the collection of interviews should be treated as a single document that belongs to the university and is subject to privilege, Recht said.

Lawyers seeking the report also will have to convince a judge that there's likely something in it that warrants breaching privilege. Judges don't like fishing expeditions. And the lawyers will have to show first that they couldn't get the information  in some other way, through their own investigation.

            Holmes' defense lawyers may try to argue that whatever concerns the university has ·about disclosing the report, they're trumped by the fact that someone's life hangs in the balance. "The defense will raise anything and everything as a legal issue to stop James Holmes from being executed;” Silverman said. "They will argue that his rights as a capital defendant trump anybody else's right to privacy'

            While this argument may carry plenty of emotional weight, as a matter of law the fact that a man's life is on the line is no exception to the attorney-client privilege, Recht said. In fact, it may be easier for attorneys in the civil cases, where the only thing at stake is money, to convince a judge they should get the report, Steinhauser said.

            On the criminal side, the central issue is Holmes' mental state, and the report may only touch on that. But on the civil side, it's all about negligence, about what actions the university took, and this is precisely what the report addresses, so it's relevance will be much easier to establish, Steinhauser said.

An upper hand

            Even so, overcoming the university's objections will be hard to do. Most of the attorneys interviewed for this story believe the university has the upper hand in both the criminal and civil cases.

            What is more likely to happen is that the judge in the criminal or civil cases will ask for a copy of the report so that he can review it himself and decide whether there's anything in it that merits overriding the university's objections. If so, the judge could order that only certain portions of the report be disclosed.

            The university would then likely file an immediate appeal, and the battle would shift to another court.

             However the battle over the report plays out in court, attorneys expect it to be something of a master class in skillful lawyering.

"From a legal perspective," Recht said, "it is complicated and difficult and cutting edge and fascinating."


- David Forster,


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