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James Holmes case: Leak fears inspire order denying access to evidence for victims' lawsuits

Update: Judge William Sylvester, the jurist overseeing the Aurora theater shooting case against accused murderer James Holmes, has denied a request for access to evidence from three victims suing Cinemark, owner of the Century 16, where twelve people died and 58 were injured during the July 20 attack. An implied reason why not: fear that key information might be leaked.

Brandon Axelrod, left, speaks with reporters in the days after the Aurora theater shooting.
Brandon Axelrod, left, speaks with reporters in the days after the Aurora theater shooting.

As we've reported, at least three suits have been filed on behalf of victims accusing Cinemark in negligence -- the latest under the auspices of attorney Marc Bern, whose firm won a big settlement on behalf of 9/11 first responders. Sylvester's just-issued order addresses two other complaints -- one filed jointly by Denise Traynom and Brandon Axelrod, the other by Joshua Nowlan, each of whom sustained injuries in the attack. But they all make similar arguments, maintaining that Cinemark should have had alarms on auditorium exit doors that would have prevented suspect Holmes from blocking them open in order to arm himself, and that the theater should have had security personnel on hand due to past violent incidents there.

Note that although the Traynom-Axelrod and Nowlan suits originally cited "at least one shooting, involving gang members" at the theater, that reference has been amended -- something Cinemark cites in a motion to dismiss the complaints.

Earlier this month, Holmes's legal team objected to the release of information to the victims suing Cinemark. In a document seen in full below, they argued that those suing "have not asserted a legally cognizable interest in Mr. Holmes's criminal case. Rather, they are seeking access to documents and evidence, some of which is presently suppressed in the court file and some of which is not in the Court's possession, to aid them in pursuing their civil case against Cinemark USA, Inc. The law does not authorize them to intervene in Mr. Holmes's criminal case to engage in this pursuit."

The attorneys attempt to bolster this claim via citations from previous cases -- but they also offer another argument:

Finally, even if this Court were to entertain the victims' request to intervene for the purpose of obtaining documents and evidence for use in their civil case, Mr. Holmes objects. Because of the sensitive nature of the information involved and the intense public scrutiny this case has received, there is a high likelihood that the release of this information at this early stage in the proceedings would jeopardize his right to a fair trial by an impartial jury, as protected by the Colorado and federal constitutions.

In the end, Sylvester gave the defense lawyers the denial they requested. But his rationale was a bit different than theirs. Continue to learn more about Judge William Sylvester's latest ruling and to see newly released documents.

 

Sylvester notes in his order that he couldn't give the victims access to transcripts of 911 calls made in connection with the theater shooting even if that was his desire, since they're not in the custody of the court. The City of Aurora has jurisdiction over them at this point, and has independently denied access to those suing for fear that making them available "could jeopardize the integrity and fairness of the criminal investigations and is therefore against the public interest."

In asking to look at "specific documents (including Affadavits in Support of both Arrest Warrant and Search Warrant as well as the Return on Inventory from the Search Warrant)," the victims cited Colorado's Victims' Rights Act. But Sylvester writes that the act lacks any language allowing victims to intervene in an existing criminal case. And that's not to mention the possibility details could get out, despite promises by attorneys representing the victims that they'd keep the materials secure.

"While the Court appreciates the Victims/Intervenors' willingness to subject themselves to a protection order to ensure that any information they receive remains undisclosed, the Court declines to avail itself of that alternative," Sylvester announces, adding, "As to the request for the Affidavits in Support of both Arrest Warrant and Search Warrant and the Return on Inventory from the Search Warrant, the Court notes that it is particularly important that such information not be disclosed prior to the proof evident/preliminary hearing."

That hearing was originally expected to be held soon, but it's been pushed back, likely to the first months of 2013. Afterward, the victims can make their request again, Sylvester tells them -- but not before.

Here's Sylvester's order and a collection of documents from the victims' lawyers. They're followed by our previous coverage.

James Homes Case Order Regarding Motion to Intervene for Limited Purpose
James Holmes Case Reply in Support of Motion to Intervene for Limited Purpose

Continue to read more about the lawsuits against Cinemark and see many of the documents.

 

Original post, 6:46 a.m. October 24: The release of new documents in the case of James Holmes , accused in the Aurora theater shooting , continues at a rapid pace. Shortly after filings over access to the cell phone of someone Holmes texted comes a defense request for denial to a motion from victims suing theater-owner Cinemark , who want access to evidence in the horrific crime. Get details and see the docs below.

In September, as we've reported, three survivors of the attack, which killed twelve and left 58 people wounded, filed lawsuits against Cinemark, owner of the Century 16, where the July 20 massacre took place. Cinemark has filed to dismiss these claims -- but last week, another suit arrived. Marc Bern, whose New York law firm has won a big settlement on behalf of 9/11 first responders, filed on behalf of several high-profile survivors who feel Cinemark is guilty of negligence.

The plaintiffs in the suit, filed in Arapahoe County District Court (as opposed to U.S. District Court, where the other complaints now reside), include Farrah Soudani, who got an assist from theCHIVE.com to help defray enormous medical costs associated with the serious injuries she sustained, and Yousef Gharbi, a teenager shot in the head during the assault.

Farrah Soudani in a photo supplied by theCHIVE.com.
Farrah Soudani in a photo supplied by theCHIVE.com.

Another plaintiff is Mike White, Sr., who was at the theater with his son, Mike White, Jr., during the fateful screening of The Dark Knight Rises. The elder White wasn't physically injured, but his namesake suffered severe wounds.

The two previous suits -- the first jointly filed by Denise Traynom and Brandon Axelrod, the other by Joshua Nowlan, all of whom sustained injuries in the attack -- argue that because of past incidents at the Century 16, including "at least one shooting, involving gang members," plus assaults and robberies, the theater should have had security personnel on hand for the Dark Knight's midnight premiere. The complaints also take Cinemark to task for failing to have alarms that would have alerted employees after Holmes allegedly blocked open the exit door in order to arm himself.

Similar themes are struck in the new suit, which arrives under the auspices of Napoli Bern Ripka Shkolnik & Associates, LLP, a firm that secured an $816.5 million settlement in the aforementioned 9/11-related matter. The "General Allegations" section maintains that the Century 16 "posed an unreasonably dangerous risk to paying customers such as Plaintiffs because Defendants had failed to ensure that the subject premises were safe and secure for its paying customers and were free of the violent crime and the risk of violent crime."

How? In part by not having security personnel on hand on the night of the midnight premiere despite the aforementioned shooting and previous offenses at the theater, and by neglecting to install an alarm on the door that might have alerted employees when Holmes blocked it open.

To back up these claims, attorneys want access to evidence collected for the criminal prosecution of Holmes. But the suspect's legal team says no.

Continue to read more about the arguments of Holmes's attorneys, and to see the documents.

 

Yousef Gharbi.
Yousef Gharbi.

In its "Response to Motion to Intervene for Limited Purpose," Holmes's public defenders -- Daniel King, Tamara Brady and Kristen Nelson -- write, "The defense is mindful of the traumatic events the victims have experienced. Nevertheless, the victims' motion should be denied."

Their reasoning, as explained in the document: Those suing "have not asserted a legally cognizable interest in Mr. Holmes's criminal case. Rather, they are seeking access to documents and evidence, some of which is presently suppressed in the court file and some of which is not in the Court's possession, to aid them in pursuing their civil case against Cinemark USA, Inc. The law does not authorize them to intervene in Mr. Holmes's criminal case to engage in this pursuit."

The attorneys attempt to bolster this claim via citations from previous cases -- but they also offer another argument:

Finally, even if this Court were to entertain the victims' request to intervene for the purpose of obtaining documents and evidence for use in their civil case, Mr. Holmes objects. Because of the sensitive nature of the information involved and the intense public scrutiny this case has received, there is a high likelihood that the release of this information at this early stage in the proceedings would jeopardize his right to a fair trial by an impartial jury, as protected by the Colorado and federal constitutions.

No kidding: Holmes's lawyers object under the provisions of eight separate federal amendments.

At this writing, no ruling on the new document has been made public.

Continue to read the latest document, as well as all three lawsuits filed by victims of the Aurora theater shooting.

 

James Holmes Case: Response to Motion to Intervene for Limited Purpose
Aurora Theater Shooting Families v. Cinemark
Denise Traynom and Brandon Axelrod v. Cinemark USA
Joshua Nowlan v. Cinemark USA

More from our Aurora Theater Shooting archive: "James Holmes case: Inside three victims' lawsuits against Aurora theater."


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