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Between a Rock and a Hard Place

The families of the Columbine victims leave no stone unturned as they search for the truth. They keep looking under rocks, making dark discoveries -- and then the worms start turning. The worms have been wiggling every which way since U.S. District Judge Lewis Babcock threw out most of the...
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The families of the Columbine victims leave no stone unturned as they search for the truth.

They keep looking under rocks, making dark discoveries -- and then the worms start turning.

The worms have been wiggling every which way since U.S. District Judge Lewis Babcock threw out most of the families' civil lawsuits -- their last, best hope for illuminating not just what happened that day at Columbine, but also Jefferson County's inactions before April 20, 1999, and its ludicrous actions ever since.

First came Eric Harris's diaries, seized the day of the slayings and kept under wraps until they were leaked last month, which revealed that Harris had planned the massacre a year before the actual killings. Had Jeffco executed a search warrant the previous spring -- a search warrant that didn't come to light until April 2001, despite open-records requests for all information relating to Randy and Judy Browns' 1998 contact with the Jeffco sheriff's department -- deputies might have found those diaries, seen those plans, stopped the slaughter. (Jeffco couldn't even find the FBI's post-Columbine interviews with the Browns until an FBI agent read about the missing documents in Alan Prendergast's April 5, 2001 "Lights, Camera...No Comment" and supplied copies.)

And then, on December 26, five Columbine families went to federal court to ask that their lawsuits be reinstated, considering the "pattern of obstruction and falsification" by Jeffco officials as evidenced by 29 claims -- including the unexecuted, and then missing, search warrant. Their filing also alleged that a Denver SWAT member, DPD sergeant Daniel O'Shea, had killed Daniel Rohrbough. That claim was backed by a Jeffco school official who said she'd heard it from O'Shea, as well as an eyewitness account that an Arapahoe County sheriff's deputy had given the Rohrbough family.

But on December 31, in a statement released by Arapahoe County, Deputy Jim Taylor denied giving that account. "I'm sorry for their loss," he said of Daniel's family. "It is not true that I saw Daniel Rohrbough get shot, or any other person."

Although Taylor might have felt sorry for the Rohrbough family then, his mood no doubt shifted two days later when Brian Rohrbough and Daniel's mother, Sue Petrone, released a tape recording of Taylor discussing the shooting. Of Taylor saying that he'd seen Dan shot.

The worms keep turning.

On January 3, citing the "events that have unfolded during the past few days," Governor Bill Owens encouraged Jefferson County District Attorney Dave Thomas to reconsider his earlier decision not to convene a grand jury, suggesting that "a grand jury investigation may be helpful in resolving the continuing controversies surrounding Columbine."

Helpful in some other jurisdiction, certainly, but in Jefferson County? "Dave Thomas has had two and a half years to call a grand jury," says Barry Arrington, attorney for the Columbine families. And time isn't the only argument against Thomas. Consider this letter the DA wrote to then-Denver police chief Tom Sanchez (and copied to Jeffco sheriff John Stone) a few months after Columbine:

"During the afternoon of April 20, 1999, various members of the Denver Police Department assisted Jefferson County Sheriff's Deputies and other law enforcement personnel in securing Columbine High School and rescuing students, teachers and staff. During the entry of SWAT Teams and during other tactical operations, members of the Denver Police Department discharged their weapons. I have reviewed the incidents of that day with J.C.S.O. investigators and have reviewed forensic reports from the Colorado Bureau of Investigation. This review has shown that no injuries or fatalities resulted from any gunfire initiated by your officers. The gunfire was utilized as a precautionary measure for entry and security purposes.... No member of your department violated any Colorado statute regarding the use of force in such discharge."

DA Thomas gave the DPD a pass, even though the forensics were far from complete. But then, according to Jeffco's Columbine report, released months later, in May 2000, Rohrbough was killed by Klebold -- even though the one bullet recovered from his body could not have been shot from Klebold's Tec-9.

The Thomas letter alone is reason to remove the Columbine case from Jeffco and put it in the hands of an unbiased body with subpoena power. That rules out the El Paso sheriff, whom John Stone had asked to investigate the allegations against O'Shea; it rules out Arapahoe County, where sheriff Pat Sullivan stands by Taylor's statement rather than the tape.

Last week, Thomas floated the idea of an inquest into Rohrbough's death. But while an inquest is a public proceeding, one at which audience members may even pose questions, what killed Danny Rohrbough is just one of many unanswered questions about Columbine. An inquest wouldn't determine why Jeffco failed to execute that search warrant, or why it so badly bungled its investigation after April 20. By expanding its scope to all fifteen deaths, an inquest might get more answers -- including what killed Dylan Klebold, since District Judge Brooke Jackson has refused to release Klebold's autopsy report, on the grounds that it might be too "offensive" -- but Jeffco would still be running the show.

At the same time he's fighting Babcock's dismissal of the civil lawsuit, Arrington's looking at every alternative. "I'm beating every bush I can find," he says. "There's nothing but misinformation, lies, stonewalling. The one thing that's utterly certain is that law enforcement can't be trusted to do this on their own." And so on Tuesday, Arrington took his request for a federal grand jury to U.S. Attorney John Suthers.

But that avenue may be a dead end, too. Senate candidate Tom Strickland preceded Suthers as U.S. Attorney; he was sworn in on April 21, 1999, and spent his first day on the job at the school with then-attorney general Janet Reno. "The standard is a reasonable belief that federal law has been violated," he says of cases given to federal grand juries. "That's what the U.S. Attorney's Office will look to; that's the standard families will have to meet. The grand juries are not a fact-finding group. They're not a group that goes out and issues reports. They're highly secret."

And haven't there been too many secrets already? Colorado's most infamous federal grand jury was charged with investigating alleged environmental crimes at Rocky Flats. Since that grand jury was disbanded in 1992 -- after writing a report revealing that jurors had wanted to indict federal employees for criminal acts, which then-U.S. attorney Mike Norton refused to do -- the jurors have been fighting to reveal what really happened behind closed doors. Their request to be released from their oath of secrecy is still pending before federal judge Richard Matsch.

The jurors' attorney, Jonathan Turley, doubts that a federal grand jury is the answer for Columbine: "Most federal prosecutors would rather drink molten lead than take a case like this to a grand jury, since it creates enormous tensions between state and federal officials."

And there's a problem beyond jurisdiction. "The federal government can look hypocritical going after state officials after Waco," Turley says. "Whatever negligence occurred at Columbine, it is a fraction of the proven misconduct and negligence that occurred at Waco."

A civil court could uncover the truth about Columbine, but Jeffco has another week to respond to Arrington's December 26 filing -- and then there's no guarantee that Babcock will reinstate the complete lawsuits.

In the meantime, the families have another alternative: an investigation by the state legislature. "Columbine is the prototypical example of a case worthy of investigation by representatives of the people," says Turley. "That's the most appropriate place to investigate possible negligence and any questions of a coverup." And unlike the Governor's Commission on Columbine, which was stymied at every turn by its lack of subpoena power, a legislative commission would have that tool. "If the state legislature reveals some real manifest misconduct," Turley adds, "it can ripen into a criminal case."

Although the concept of a legislative commission hasn't emerged publicly, it's floating close to the surface. Don Lee, the state representative whose district includes Columbine, says he's considered different ways the legislature might get involved. Arrington's actively exploring the possibility. "An option we are going to pursue is a legislative commission with subpoena power," he says, adding that he's found a surprising level of support at the State Capitol, where he recently served (and "vehemently opposed" a bill giving district grand juries the right to break their silence -- a position he says he'd now reconsider, given the trouble he's had uncovering the real story of Columbine).

"There are cosmic alignments where it's not partisan at all," he says. "Democrats and Republicans have the same goal: to find the truth."

We'd settle for that.

More Columbine coverage in our Columbine Reader

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