An unusual motion in a child abuse case accuses 7News and 9News of breaking state laws by airing details from confidential child welfare and medical records in their reporting on thedeath of Levi Welton
, a two-year-old who perished in a fire in his family's Sterling home in January. The attorney for Levi's father is seeking "the destruction of all protected documents that are illegally possessed" by the two Denver television news operations -- raising the prospect of a new, unsettling round in Colorado's legal battles over the rights of a free press clashing with a defendant's right to a fair trial.
Public defender Tom Ward, who represents Chris Welton, maintains that his client's ability to receive a fair trial has been jeopardized by the stations' reports; we referenced the 7News material in a March 19 post. Both Chris and Julia Welton are facing charges of negligent child abuse resulting in death and other counts in the wake of the fire that claimed their son's life, which started in a pile of clothes in a room where Levi was playing with his older brother. Five-year-old Dean Welton managed to escape the blaze, but Levi was found unresponsive in a closet by firefighters.
A few days after the fire, John Ferrugia of 7News reported that the children had been temporarily removed from the home by Logan County's Department of Human Services (DHS) in a dependency and neglect case but later returned to the home, despite ongoing concerns about drug use and fire hazards. Referring to "disturbing documents the family shared with others in the community," Ferrugia also asserted that both boys had tested positive for THC during the weeks leading up to the fire, including a positive test only hours before the blaze. Their mother, Julia, reportedly has a medical marijuana card.
Ward's motion claims that televised report, along with a similar, subsequent one by Chris Vanderveen for 9News, contained information from the neglect case and medical test results that are supposed to be sealed from public view. The filing contends that the mere possession of DHS documents by an unauthorized party is a petty offense in Colorado, while possession of someone else's medical records could be prosecuted as a low-level felony, punishable by up to eighteen months in prison and a $100,000 fine.
"It is a fact that Channel 7 and 9News are in possession of drug tests of minor children and those tests have been published," the motion states. "The wide dissemination of these documents will undoubtedly cast a shadow of guilt upon Mr. Welton in the minds of prospective jurors before any evidence has been presented in this case."
Unlike most subpoenas served on news organizations in criminal cases, Ward's action isn't seeking to identify the source of the leaked documents. (Both stations apparently obtained the documents from non-government sources.) Instead, he's seeking the destruction of whatever confidential records from the case that the journalists have received -- and suggesting that the stations could be criminally liable for airing excerpts from the records.
In a response filed last week, an attorney for Scripps Media and Gannett, the parent companies of KMGH-TV and KUSA-TV, calls Ward's request "an astonishing abuse of the subpoena power." The stations contend that Colorado's reporter shield law, as well as the First Amendment, protects them from having to produce or destroy the documents, and that the court order Ward is seeking would amount to prior restraint on the press.
"The public defender's motion is deeply troubling," says Jeff Harris, the news director at 7News. "The fact is, there is no law, none, prohibiting us from possessing the documents we have."
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Ward and 13th Judicial District Attorney Brittny Lewton declined to comment on the dispute. A spokesperson for the Denver District Attorney's Office said that she was unaware of any possible prosecution over the leaked DHS files.
Harris insists his team was "very careful and very respectful" in what they chose to broadcast: "All of our reporting has to do with the accountability of government, and the jeopardy in which this child might have been placed."
No representative from the TV stations showed up at a hearing last week in response to the subpoenas issued by the defense, which attorneys for 7News and 9News claim were improperly served. District Court Judge Michael Keith Singer scheduled a "show cause" hearing for June 19, so that the stations' attorneys can provide an explanation of why they skipped last week's proceeding.
More from our Colorado Crimes archive circa March 19: "Julia and Chris Welton charged with negligent child abuse in death of son Levi, pot use targeted."