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James Holmes case: Media's argument to make more information available

As we've reported, Judge William Sylvester ordered that the majority of documents in the James Holmes shooting case remain sealed. But those he's letting the public see include the argument by some of the country's major media organizations about why they should be allowed more access, including comparisons to the Gabrielle Giffords attack in Arizona and counter-claims by both the prosecution and the defense. See them all below.

The media's "Motion to Unseal Court File (Including Docket)" was presented by a team of attorneys that included Steve Zansberg, who represented news organizations in requests to release information in some of the state's highest-profile cases, including rape allegations against Kobe Bryant (a filing from that matter is included in the document) and the Oklahoma City bombing trial, which took place in Denver. The latest motion argues that there is "no proper basis...for the blanket sealing of the entire case file," including warrants. The document allows that "absent disclosure of the factual bases for the issuance of a warrant, the public cannot properly assess the propriety of the government's conduct." Quoted on this subject is the late U.S. Supreme Court Justice Warren Burger, with a portion of his statement printed in bold:

When a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter, the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion....

The crucial prophylactic aspects of the administration fo justice cannot function in the dark; no community catharsis can occur if justice is done in a corner or in any covert manner. It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it.

Additionally, the motion maintains that "bald assertions of harm to investigations have been rejected where they are made after a defendant has been formally charged and the search or arrest warrant materials have been filed with the court." (The emphasis is in the original.) To back up this point, the motion cites "last year's mass shooting incident in Tucscon, Arizona," during which Jared Lee Loughner killed six people and injured another fourteen others, including Congresswoman Giffords, during a public appearance by the latter. (Loughner recently pleaded guilty in the attack and will spend the rest of his life behind bars.)

"The court initially refused to unseal search warrants and associated affidavits due to an active and ongoing criminal investigation" in the Loughner massacre, the motion states, "but later ordered them released after the grand jury returned an indictment and the government acknowledged that its active investigation was completed (that no additional charges were expected)."

These assertions drew responses from both the 18th Judicial District DA's office and the defense team representing Holmes. These legal combatants have sniped at each other in other court documents, but in this instance, they're very much on the same page. Here's the defense's take on why more documents shouldn't be released:

At this early stage in the process, it is almost impossible for this Court to prospectively engage in the "fact-bound" analysis of determining whether unsealing the entire court file and register of actions is appropriate.... Neither the Court nor the parties can anticipate the nature of the pleadings and the litigation that will ensue in the coming months. The defense has only recently received a voluminous amount of initial discovery, and is still in the midst of processing this information. Unsealing the entire case file at this point is likely to have a chilling effect on the ability of the parties to make candid arguments about significant legal issues in the case going forward.

And this is from the 18th Judicial District DA:

The People recognize this case will likely be unsealed at some point. However, unsealing the case at this stage could impact the ability to fully investigate the matter. To put it simply, this is not a normal criminal investigation and this is not a normal criminal case. The sheer number of victims and witnesses demonstrate that the normal standards by which a court could judge that the people have had sufficient opportunity to conduct their investigation do not apply. The People respectfully request this case, and all documents associated with it not already released, remain sealed until there is a reasonable opportunity for the matter to be fully investigated by law enforcement and for discovery to be provided and reviewed by the defense.

After perusing these arguments, the media replied in another motion with, among other things, an extraordinary list of what the response claims is already known about the Aurora theater shootings.

Page down to see the list of events related to the Aurora theater shooting and the five documents related to media requests.

A screen capture of James Holmes at his first court appearance.
A screen capture of James Holmes at his first court appearance.

Here's the list from the second media filing:

• Based on numerous eyewitness accounts and an unnamed federal official: just after midnight on July 20, 2012, James Eagan Holmes, 24, entered theater number 9 at the Century Aurora 16 multiplex through the audience entrance, Some moments later, Holmes exited through the emergency exit at the front of the theater, propped the door open, and retried a series of weapons from his car, a white Hyundai parked near the emergency exit in the parking lot....

• Back inside theater 9, Holmes deployed two separate grenades, one filling the theater with smoke, the other releasing a chemical irritant....

• Holmes was dressed all in black. He was wearing a tactical ballistic vest, tactical ballistic helmet, bullet resistant leggings, a throat protector, groin protector, gas mask, and black tactical gloves....

• Holmes's hair was dyed red; he told someone that he was "the Joker," one of the fictional villains in the Batman comic book and movie series....

• Holmes fired multiple rounds into the crowd, using an AR-15 assault rifle.... He also had a 12-gauge shotgun, and two 40-caliber Glock handguns....

• Holmes killed twleve people, ten of whom died in the theater, two in area hospitals.... Holmes shot and injured another 58 individuals.

• Holmes exited the theater through the emergency exit and walked to his car, parked outside. There, he was observed by two Aurora Police Department officers, who noticed that one aspect of his clothing/body gear was unusual, i.e. inconsistent with typical SWAT attire.... The two officers placed Holmes under arrest without encountering any resistance....

• Upon being taken into custody, Holmes informed the officers that his apartment was armed or "booby trapped" with several incendiary devices....

• Upon arriving at Holmes's apartment at 1690 Paris Street, number 10, in Aurora, police encountered an elaborate web of tripwires and explosive or incendiary devices.... According to official law enforcement statements, the tripwire at the front door to defendant's apartment was "set up to clearly detonate when someone entered that apartment and it was set up to kill that person and that could have been a police officer executing a search warrant...."

• Prior to the events of July 20, 2012, Holmes had been a student in the Ph.D. program in neuroscience at the University of Colorado campus in Aurora....

• Holmes had voluntarily withdrawn from the academic program in mid-June....

• Holmes had no prior criminal record; he had one traffic summons for speeding, in October 2011....

• Beginning in approximately May 2012, Holmes had lawfully acquired the four firearms and some 6,000 rounds of ammunition -- some purchased over the Internet -- including the 100-round barrel cartridge that was recovered at the scene....

• Holmes has also been a [redacted] at the University of Colorado....

By the way, the redaction in the last line above is almost certainly a reference to Holmes having been under psychiatric care -- a revelation that was released in one document only to be subsequently blotted out.

Cumulatively, this roster of events shows, in the mind of Zansberg and his fellow attorneys, that because so much information is already been made public, restricting the rest of it is unnecessary. But Judge Sylvester didn't buy that argument, or at least much of it. He acquiesced to media requests to share the register of actions -- essentially a running list of everything that's been filed to date -- as well as assorted motions, totaling 34 documents. Otherwise, he wrote, "the Court ORDERS that the file remain suppressed and anything currently sealed is now suppresed, with the exception of the package which is now under seal and held with the Clerk of the Court. Said package shall remain sealed and inaccessible to anyone, including the Parties of Record."

When could this change? Impossible to know right now. But you can bet the media, and the media's legal team, will keep pushing until Sylvester relents.

Page down to see all five motions related to media requests in the James Holmes case.

James Holmes case: Motion to Unseal Court File (Including Docket)
James Holmes case: People's Response to Motion to Unseal Court File (Including Docket)
James Holmes case: Defendant's Response to Motion to Unseal Court File and Prosecution's Response
James Holmes case: Media Petitioner's Reply in Support of Motion to Unseal Court File
James Holmes case: Order Re: Motion to Unseal Court File (Including Docket)/("Suppression Order")...

More from our Aurora Theater Shooting archive: "James Holmes-should-sit-at-defense-table motion, other newly released documents."