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THE FIGHT OF THEIR LIVES

part 2 of 3
"He's never going to be back," said his mother. "He's never going to be the Paul that we knew."

Holcomb had been raised in Colorado, and it was on vacations to see her family that Paul had fallen in love with the place.

She and her first husband divorced when Paul was ten, and she had struggled to raise her sons while working as a legal secretary. She would have liked to move back to Colorado but thought it important to stay near the boys' father. Although he eventually moved to Florida, by that time she had gotten remarried--to a doctor.

Paul didn't seem to be affected by the divorce. He was a popular kid, voted "friendliest" three years running in high school. He had his share of teenager troubles, a couple of minor infractions with the law when he was a senior in high school: for possessing alcohol as a minor and being in a Little Rock park after hours. But nothing major. He was a decent student until that last year, when he slacked off. Still, his grades were good enough to get him accepted into the University of Arkansas, where he intended to study architecture. But then he decided to take some time off. In January 1992 Paul Kelly went to live in Boulder, to be near the mountains he loved.

Holcomb hadn't liked the shaved-head-and-goatee look her son adopted that year. She thought it was dangerous and told him so when she visited the following January. "I said, `Paul, it's scary to me.' But he said it shouldn't matter."

Her sister, who lived in Denver, tried to talk Paul out of shaving his head. "She told him, `Paul, don't do it. It means something here,'" Holcomb remembers. "But Paul, the idealist, just said that people shouldn't be judged by how they look."

Now he was lying in a hospital bed in critical condition. And though Holcomb didn't know it yet, he had been put there by high school boys who believed he was a skinhead.

Mary Graber McBride's kids had told her about the fight Saturday night. Justin and Ian were upset, but it wasn't until Monday--when the newspaper came out--that they learned of the seriousness of Kelly's injuries.

"They were unglued," McBride says. She didn't know what to make of the Camera's story. She believed her sons, who had never been in trouble with the law before. But she hadn't liked Ryan Rushing or Forest Timothy from the start and had told Justin to keep them out of her house.

After reading the Camera, she contacted a lawyer and asked whether her sons should go to the police and confess. "The lawyer said, `No, let them come to you,'" she remembers.

Ben Rushing opened the Daily Camera that morning and was shocked by the story on Paul Kelly, who was shown in a picture from his high school yearbook. He looked like an all-American kid. Ben showed the newspaper to his wife, Sherry. Big-city violence seemed to have made it even to Boulder, he sighed.

They both had been born and raised in a small Texas town just north of the Mexican border; their children had been born there, too. As a young man, Ben Rushing had smoked a little pot, but he wasn't proud of it, and he told his kids that he hoped they wouldn't repeat his mistakes.

A small man, he had never been one to get into fights and had stayed out of trouble with the law. Ryan, the oldest, had his share of schoolyard scraps, after which his father was careful to explain that fighting was only acceptable to defend himself or someone else. He also made it clear to his children that they must always take responsibility for their actions.

The family left Texas--where Ben had been the assistant to the publisher of a small newspaper chain--in 1988 to find better schools for their children and to expose them to the wider world. They went first to Eugene, Oregon, but the gray, wet winter made them homesick.

So they compromised by moving to Boulder, which the family had visited once on vacation. It was closer to Texas and was supposed to have good schools. Sherry was going to stay at home with the kids, and Ben thought the city was cosmopolitan enough to support his marketing business while retaining a small-town feel.

When they arrived in Boulder, Ryan was just entering the eighth grade. It was soon apparent that he had trouble concentrating on his subjects and was not keeping up with his classmates. His teachers reported that he often made self-deprecating remarks about his academic abilities, especially when comparing himself to his sister, Erica.  

So it was almost a relief when he was diagnosed with learning disabilities. But that meant his parents would have to monitor him closely to keep him on track, the counselors explained.

Still, he was a friendly kid, a good athlete and well-liked by other students and his teachers. If Ben Rushing had a major concern, it was that Ryan had a tendency to follow others' leads. All he seemed to want to do was skateboard and hang out with friends like Forest, who got into a lot of trouble. They had recently tried to discourage the relationship.

Ben wasn't naive. He knew his son probably drank beer with his friends. But Ryan hid it well, and there hadn't been a reason to confront him about it. A lot of the trouble kids were getting into in Boulder, Ben thought, was because of the community's ultraliberal philosophy that seemed to promote everything from promiscuity to drugs to homosexuality. No wonder Boulder teenagers were confused about their identities--their parents were still trying to find their own.

Ben noticed that in high school, Ryan and his friends adopted a tough-guy sort of posturing. He figured that had to do with them being smaller than other boys in their class. Ryan's two run-ins with the police had troubled Ben, but lately his son seemed to be making a real effort. He said he wanted to be an architect and had signed up for drafting classes at Paddock.

Ben Rushing looked at the photograph of Paul Kelly that accompanied the newspaper story. He looked like a nice young man. It was hard to imagine why a bunch of teen-aged thugs would beat him so mercilessly.

He didn't know what he'd do if something like that happened to one of his kids.

About a dozen officers from the CUPD and Boulder police were assigned to the Paul Kelly case. By Monday they had a pretty good idea of who was involved, although they were getting conflicting reports about the specifics.

One girl's father told the police that from what he knew of Forest and Justin, "they are violent people. Very violent. I've been around them."

Another girl described Forest as "a pretty big wimp who probably could not have taken on Kelly."

Other witnesses who had been at the Wendy's that night told police they'd heard the boys--sometimes mixing up their names--talking about beating up a skinhead.

"They're a bunch of little hoodlums who drink all the time and are alcoholics," said one boy. "They brag about fighting, rarely attend class and are just underclassmen who get no respect at Fairview."

At school that morning, Ryan saw the newspaper story that had set Fairview buzzing. "The strange thing is, there were all these guys at school who weren't there who were telling people they were," he remembers. "Acting tough." But people were giving him funny looks, so he left to find his friends.

Ryan, Forest and Andy holed up over at Andy's house, trying to think of alibis. "We didn't go over to beat Paul Kelly up," Ryan says. "We went to yell at him for being such a shithead...hitting the car and all. It just escalated." Along with Justin, they decided to leave Ian Graber out of it, Ryan says. He was the oldest and the most likely to get in trouble if the cops caught them. Ryan and Forest were juveniles and thought that would protect them from the worst--at least while they still believed the worst that could happen would be a misdemeanor assault charge.

"The newspaper made it sound like this nice guy Paul Kelly was just walking down the street when these raving psychos, a gang of animals, jumped him and beat him down," Ryan recalls. "The photograph didn't look anything like the guy who hit me. But the DAs and cops were talking like they were going to prosecute us to the fullest extent of the law. We were really scared."

While Ryan and Forest were at the house, detectives came by to talk to Andy. They accused him of having been at the fight. He denied it, and the cops left. But the boys were frightened enough to meet with Ted Waitkus and tell him the story.

Ryan remembers him telling them, "Don't say anything. And get yourself a lawyer...you're going to need one."

Ben Rushing was watching television that evening when the telephone rang. It was Andy's mother, his former neighbor. She said Ryan had been involved in the fight with the college boys on the Hill. She had overheard the boys talking and thought he should know.

Ben thanked her and hung up, suddenly afraid. Ryan had been in trouble before, but nothing like this. Then Ryan walked in and confessed everything.  

His version of the fight bore little resemblance to the newspaper story. Ben looked at his son, searching for some clue that would tell him if what he was hearing was the truth. There was nothing, really, except this sounded more like the boy he knew and loved. His son was stupid for not walking away from a fight--and he told him so--but Ryan wasn't a monster who had ambushed someone like a thug in the night.

Still, there was no denying he was going to have to take responsibility for his part. But surely, Ben thought, once the district attorney and police heard the truth, they would see that both parties were at fault.

By Tuesday, the Paul Kelly beating had moved to the bottom of the Camera's front page--below the conflagration at Waco--but the Denver dailies and television stations had joined the feeding frenzy.

The Camera reported that the CUPD had identified two teens in the "senseless beating" and expected to arrest at least four. Paul was now described by relatives as a part-time art student who had never been known to fight.

On page two, the Camera reported that two girls, both witnesses to the fight, had called the paper Monday to say that Paul Kelly had instigated the fight by "taunting and cussing" the younger boys. Paul's shaved head indicated that he was tougher than the newspaper was making him out to be, the girls said.

At the CUPD, another girl who'd witnessed the fight complained to Detective Brian Jordan about the way it was being portrayed in the newspaper.

"That's why we're kinda pleading with witnesses...don't talk to the media, because the worst thing to get out would be speculative reports," Jordan replied. "As well as the greater ill feelings in the community against these guys if it was a case of some kind of mutual combatants."

Ben Giltner, who denied having kicked Paul Kelly (although he conceded to kicking James Atwood), told police: "Well, I guess it was basically a normal fight that happens all the time. I mean, I hear of all kinds of fights at school over dumb things, and this was pretty much a dumb thing to fight over."

Tensions at Fairview High School were running high. Students were split between those who thought Paul had been injured in a fair fight and those who didn't like the bad publicity for their school and blamed the boys involved. The boys' girlfriends and Ryan's sister were being called "gangster bitches."

The press was all over the school, conducting interviews, taking photographs, filming. Weekend fighting, particularly between high school kids and college students, was becoming more common, they told a reporter. "It's going to happen," said one freshman. "You've got to take it in stride and pray you're not the one getting the crap beat out of you."

But the rest of the town was not taking it in stride. Rumors were flying about marauding gangs of youths. Of young men with baseball bats stalking people. One woman complained to police that young men in flannel shirts and baggy pants were hanging out on a street corner, apparently up to no good.

The woman who had braked to avoid hitting James Atwood on the night of the fight called the police and said she was afraid to come forward. The detective assured her she wasn't a very important witness and had nothing to fear. But the woman was unconvinced. Boulder was no longer safe, and she was going to leave. "I'm sick of this place," she said.

A $5,000 reward was now being offered for information leading to the arrest and conviction of those responsible for the attack on Kelly.

As Ben Rushing looked at the Tuesday paper, he began to worry that press accounts could affect the investigation. He had sent Ryan to school that day while he contemplated a course of action. He knew he should probably contact a lawyer, but he didn't want Ryan to hide behind any legal machinations. The facts were the facts, and his son would have to face it.

Ben called the district attorney's office and made an appointment to meet with Deputy District Attorney Peter Hofstrom.

"I think my son is involved in the Paul Kelly case," Rushing said in the DA's office. "I'm looking for advice."

He felt better when Hofstrom assured him that all he was after was the "truth." Hofstrom told Ben that the best advice he could give him was to convince his son to come forward and explain what happened.

Ben went home and told his son that he expected him to go to the police the next day. The only promise he could make was that he would be there with him.  

On Wednesday, April 21, the news out of Waco still dominated the Camera's front page. But the Paul Kelly story ran a close second, with the paper reporting that the police now had five suspects "in the brutal beating."

The Camera noted that although some witnesses claimed the college boys were at fault, "Kelly's friend, whose account police believe to be the most accurate, said the teen-aged boys instigated the fight." The friend was James Atwood.

That morning, Ben and Ryan Rushing drove to the CU police station to meet with detectives. They went without a lawyer. Ben knew his son wouldn't be walking away from this, but he was sure they were doing the right thing.

It was obvious Ryan was scared, but he stuck to the story he had told his father Monday night and refused to say he had seen his friends attack Kelly--even after the detectives hinted it might help him escape some of the punishment.

They went to the scene of the fight, and Ryan showed the detectives where he had been when he fought with and then kicked Kelly. They then went to the Rushing home and, with Ben's permission, confiscated the clothing Ryan had worn that night. Ryan pointed out a small drop of dried blood on his right shoe.

The detectives left, saying that they would be in touch.
On Thursday, the Denver Post ran its own front-page story about "the beating and stomping" of Paul Kelly. Ben Rushing read the new story with dismay. Here was the same line--helpless victim of senseless teen violence--being put out by the cops and the district attorney's office, and the press was gobbling it up. He called CU's Detective Brough. Taking great pains not to criticize the handling of the case, Ben asked why--now that his son had come forward and given another version of the incident, which had been corroborated by other witnesses--it was still being portrayed as it was in the media.

"I know there's a lot of scrutiny on these five guys...what they did," Rushing said. "I'm only hoping that the seriousness of this thing and the, uh, long-term implications being what they are...that there's equal scrutiny on the associates of Mr. Kelly, who were involved in the altercation."

Ben Rushing asked if the detective could assure him that the college boys' role was being thoroughly investigated.

"Yes, it is," Brough said.
That evening, another worried parent called the police. It was Ted Waitkus, who had apparently heard that some of the other boys were talking.

He identified himself to Brough as the stepfather of Forest Timothy, "one of these who's been implicated in this, this horrible event that occurred Friday night down at the campus."

"I called [the district attorney], geez, I think it was Monday," he told Brough, and "left a message for whoever and said that we'd be glad to cooperate in any way, shape, or form. Nobody called me back."

Noting he wouldn't be able to reach Deputy DA Hofstrom so late in the day, Waitkus asked, "Is there any...can you tell me if there's any warrant gonna be acted on tonight?" he asked.

Brough replied, "As far as I know, no."
"The only reason I asked...," Waitkus continued, "is that if you want our kid, if you want Forest, all you gotta do is call me...and we will bring him down and cooperate fully with you. Okay? There's no need to come up and do a, a drama play for us in which you, you know, do the arrest, because that's not necessary."

Friday morning, Ben Rushing and his son again climbed in the car and drove into town. This time they were headed to the offices of the Boulder Daily Camera--to tell their side of the story.

They returned home in time for the call from the DA's office. Indictments were expected that evening. When they arrived, Ben and Sherry were to bring Ryan in to be arrested.

Ben finally realized that his son would need a lawyer, at least to see that he got a fair shake at sentencing. He took out the telephone book and began to cruise through the Yellow Pages. Randomly, he settled on a name. Lindasue Smollen.

He called her office. "My son was involved in the Kelly case," he said. "I think I have it worked out with the district attorney, but he may need a lawyer present at sentencing."

"Don't be too sure about it all being worked out," Smollen replied. She agreed to meet with him the following morning.  

Dinner at the Rushings' that night was a sullen affair. Erica, a sophomore at Fairview, had been putting up with a lot of verbal abuse, which often reduced her to tears. But she had remained loyal to her brother and was again in tears because of his impending arrest.

Sherry was angry with Ben for making Ryan talk to the police without a lawyer. She understood that he believed it was the right thing to do, but it seemed to her that all they'd accomplished was ensuring that her son's freedom and future were taken away.

About 9 p.m., the telephone rang. It was time. Ben and Sherry drove Ryan to the police station, trying to impart an optimism they didn't feel.

Ryan sat in the car, quietly looking out the window for what he thought might be his last chance for a very long time. "They were still talking like Paul might die," he recalls. "I thought I was on my way to spend the rest of my life in prison."

About 10 p.m., the CU police chief held a press conference to announce the arrest of Justin Graber, eighteen; Forest Timothy, seventeen; and Ryan Rushing, seventeen. All three were charged with first-degree assault. Two more arrests were possible, he said. The public could now rest easy.

Like the rest of the good citizens of Boulder, Lindasue Smollen had been shocked when she read about Paul Kelly.

"Holy shit!" she exclaimed, showing the newspaper to her husband and law partner, a former deputy district attorney in Boulder.

It was horrible. Senseless. And it had happened in happy, white, educated and liberal Boulder.

Curious, she asked her husband to use his connections to get the inside scoop on the investigation. A university police detective told him the assailants had upended Kelly and together used him as a pile driver on the concrete. "The kid is totally brain-dead," the detective said.

But as Smollen read the newspaper accounts over the next few days, she began to question the official line, especially the attempts to downplay the mutual-combatants angle. It seemed to her that the press was feeding on the public's fear of stranger-on-stranger violence.

Then Ben Rushing called and they made an appointment to meet. She woke up Saturday morning to a Camera that had covered its front page with stories about the arrests, as well as the interviews with the Rushings.

She was flabbergasted: Father and son had walked right in and told the cops--and then the newspaper--everything under some crazy belief that they were doing the right thing. In the meantime, the other boys' parents had hired high-powered lawyers who had kept their clients quiet.

Smollen thought Ben Rushing was being naive when he called for the college boys to have the same courage as his son and step forward to confess their roles. But she read with interest Ryan's version as to how the verbal confrontation had escalated into violence. She also noted an interview with James Atwood in which he told the reporter that it was "quite possible" he had thrown the first punch, because "I was pissed off and I pushed these guys around."

Ben Rushing's actions ran contrary to every bit of legal advice Smollen had ever given. Still, the more she read, the more she thought that maybe, just maybe, he hadn't done any damage. He might even have done some good. It would be hard to ignore the college boys' role now, she thought.

Rushing had picked Smollen from the Yellow Pages. But without knowing it, he'd selected a five-foot-tall pit bull of an attorney with thirteen years of criminal defense, much of it juvenile law.

She was no stranger to what troubled the youths she defended. A lot of it had to do with booze and disintegrating family life--something she knew only too well. Her own parents were alcoholics. Her father was the president of the board of education in her hometown in New York; he presented the public with one face while his children learned to tiptoe around him at night. She left home when she was fifteen to live on the streets. By sixteen she was a heroin addict. It was a miracle that she was able to pull herself out of it and get through college and then law school. It had made her tough.

A lot of the kids she saw were like Ryan and his friends, searching for an identity, lashing out when challenged. Unlike Ryan, many came from single-parent homes, or from parents working on divorce number two or three, or working parents with no time for their kids. The Rushings seemed different.  

When she finally met Ryan the Monday after his arrest, Smollen was surprised to see how small he was. So this was the monster. He wasn't much taller than she was; his haircut and whisper of a goatee were more funny-looking than intimidating.

She tried to lead him down the garden path and get him to blame others. Most teens she knew would have done just that. But he told the same story, the one she had already heard from his father, including how he had kicked Paul Kelly to get him to fight.

By the time she was ready to leave the juvenile detention center, Smollen was good and pissed. Ryan and the others had already been tried and convicted in the press--with the help of the district attorney and police.

She understood that the DA had to appear tough on crime. And that Paul Kelly was the person lying in a hospital, fighting for his life. But first-degree assault charges, with their mandatory prison sentences, didn't fit the nature of the crime. Hell, there was probably a case to be made for self-defense or, in Justin Graber's case, defense of others.

There were also statutes against the use of "fighting words." If Atwood's own admissions, as well as witness accounts of what Kelly had said, didn't constitute fighting words, what did?

This was a case of white, middle-class boys fighting white, middle-class boys--all liquored up and ready to defend their manhood. They had more in common than they did differences. So where were the charges against the college boys?

As Smollen prepared to leave, Ryan stopped her. He asked if it would be okay to write a letter to Paul Kelly's family to say he was sorry.

She paused. There was the chance that it would be misinterpreted as a slick lawyer move. But finally she said, "That'd be fine."

On April 28, Boulder was rocked by violence again. This time a local theater manager had been found shot to death in an apparent robbery, the first homicide in Boulder since a CU student killed his estranged wife June 2, 1991. "Following so closely on the heels of the April 16 beating of University of Colorado student Paul Kelly," the Camera reported, "the shooting once again shocked Boulder residents not used to so much violence."

As the owner of a business next to the theater told the paper, "This is Boulder. This is not supposed to happen, and now two horrible things have happened in less than two weeks."

A $1,000 reward was offered for information leading to the arrest and conviction of the killers. The theater story remained on the front page for only two days.

It was the Kelly case that held Boulder's attention. That story didn't move off the front page until April 30.

The newspaper had followed its Saturday accounts of the arrests with a Sunday blowout about the Hill and the growing violence there. Boulder parents tended to think of the Hill in terms of the old days, said police sergeant Bill Kingston. "Through that rosy glow of ten, fifteen, twenty years ago, when the Astronauts were playing up there, it takes on a kind of reminiscent quality," he said. "If you think that, you're wrong. You go up there now, and you're likely to get your ass kicked." And alcohol was the major contributor to the violence.

Letters to the editor castigated the boys and their parents, especially Ben Rushing, the only parent to step forward to defend his son. He tried to call each letter writer to offer another side. At home, he and his wife received hate mail and ugly, anonymous telephone calls.

Mary Graber McBride was also getting hate mail and people driving by her house, pointing; the Camera had published her home address after Justin's arrest. "I didn't care what people thought of me," she says. "But they were crazy. I was worried about what they might do to my property. And my youngest son, who was twelve, was frightened."

Paul Kelly's parents also spoke out, thanking well-wishers for their thoughts and contributions but venting their anger, too. Paul Kelly Sr., a social worker and doctoral candidate in anthropology, said he was worried about "the kinds of violence we tolerate in this world...I'm angry that this happened, and it's scary, it's really scary."

Margie Holcomb said she feared children and adults were becoming desensitized to violence and its outcome. "Kids see it on television or the movies, and they don't realize there are real-life consequences," she said. "This will affect Paul for the rest of his life. And it will affect these kids and their families."

Slowly, painfully, her son's condition had improved. According to Dr. Bolles, there was now cause for optimism. Still, he cautioned, Paul Kelly would never be the same.  

On April 26, ten days after the fight, Kelly's family issued a statement that they had retained the services of Denver attorney John L. Breit to handle all civil matters arising out of the crime.

"I knew that there was nothing I could do about the criminal case," Holcomb says. "I had seen where people who killed someone got almost no time and thought that there would be even less for `almost killing' someone.

"I wanted to make sure that that those responsible were held accountable."
So did Ben Rushing, who kept futilely trying to balance the story. He admitted that his son had a tendency to "get into jams" when around some of the other boys, but the responsibility for the fight fell on both groups, he argued. His frustration grew as he heard from various people who claimed they knew a different Paul Kelly than the one described in the newspapers, had seen a different Paul Kelly than the one shown in his high school photograph.

The police also were hearing rumors about Paul Kelly. And then there was Ryan Rushing's confession, which included Kelly's question "What are you claiming?" In street parlance, Kelly was asking for Rushing's gang affiliation.

The detectives were particularly interested when, during an interview, Ty Ferley used the term "gat"--gang lingo--to refer to the imaginary gun Justin reached for when confronting Atwood.

They asked if he knew the expression "What are you claiming?" and if Paul Kelly was involved in any gang activities. Ferley denied both and said he himself was unfamiliar with gang terminology.

Then why, the detectives asked, did you use "gat"? Ferley said he must have heard that term from someone but for all he knew it could have meant a stick.

CU detectives asked Matt Kelly about the rumors that his brother might be a skinhead. "Basically, the first reason why he shaved his head is because of a Halloween costume," Matt replied. "And basically kept it short just for low maintenance. And the last time he shaved his head was because he messed up on clippers and he cut his hair too short."

Paul was wearing his clothes that night, Matt told them. "I've probably worn the same outfit many times on the Hill and just anyplace where probably there'd be skinheads hanging out. And my head, my hair, is shaved pretty short, too.

"And I've never been accused of being a skinhead, ever."
Matt said his brother would be more likely to hold anti-skinhead views but be nonmilitant about it. "Paul's basically a real peaceful guy that didn't believe in racism or...any screwed-up views like that," he said.

end of part 2


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