THE FIGHT OF THEIR LIVES | News | Denver | Denver Westword | The Leading Independent News Source in Denver, Colorado
Navigation

THE FIGHT OF THEIR LIVES

part 3 of 3 The detectives asked Matt if he knew the expression, "What are you claiming?" "Claiming, it's like, it's sort of territorial," he replied. "Or it could also be like, you can claim a part of a group, too. You can be like, `I claim, you know, I'm...
Share this:
part 3 of 3
The detectives asked Matt if he knew the expression, "What are you claiming?"
"Claiming, it's like, it's sort of territorial," he replied. "Or it could also be like, you can claim a part of a group, too. You can be like, `I claim, you know, I'm down with the Crips or Bloods.'"

Matt said Paul would have known what the claiming expression meant, as well as the meaning of the word "gat." But he said his brother did not belong to a gang. "Like back in Little Rock, I'm, all of my friends are in gangs. None of his friends--like zero--but, like, a lot of my friends are..."

A detective interrupted: "Are these white people?"
"No," said Matt. "These are mostly black people...I had friends that got killed and stuff like that back home. But, you know, he was never exposed to that. He was sort of, I guess, a jock. He was basically an artist."

As the weeks passed, Smollen took the lead for the defense lawyers. The prosecutors were confident, and during negotiations they kept repeating that it was only a matter of how much time the boys would spend in prison.

Smollen was desperate to keep an adult felony conviction off of her client's record. This was a juvenile case, she argued, and rehabilitation should be the first consideration, not retribution. There were no weapons involved. Not so much as a stick or a bottle. It was a fistfight between boys that had ended with an unlucky punch.

But the prosecutors wouldn't budge; Kelly's family was insisting that there be a felony conviction. So Smollen turned her attention to keeping her client out of prison. She already was worried about his safety. Apparently, the Graber brothers considered Ryan a snitch--even though he had refused to implicate his friends during his confession--and had told mutual friends they would get him. Smollen went to Justin Graber's attorney, who reported back that he had told his client in no uncertain terms to cut it out. Justin denied making the threats, he said.

Still, even a second-degree assault plea carried a mandatory minimum prison sentence of five years. If Ryan went to jail with a snitch jacket, he could kiss his safety goodbye. But again, the prosecution was insisting that Ryan go to jail. The only negotiable issue was how long he would be there.

Finally, Smollen had had it. In a meeting with the three prosecutors and her defense colleagues, all of them male, she made the sort of comment for which she is infamous around Boulder. "Well, I'm not going to let you send a seventeen-year-old to prison to get butt-fucked, so you can quit talking about the Department of Corrections and get ready to go to trial," she told them. "And I promise, it's going to get ugly."

Smollen was prepared to go to trial, where she knew Paul Kelly and his friends would not come off as angels. She had the police report of James Atwood's burglary arrest and its tie to Kelly. There were witnesses who said they would testify that Kelly was a skinhead. Others would testify that the college boys had started the physical aspects of the fight. And Smollen was ready to use all of it in court.

The prosecution wouldn't even have much of a case against her client if he hadn't confessed. The witness statements were contradictory; some didn't even place Ryan at the scene. The only reason he could be charged as an adult was because of the juvenile felony for trespassing, which would have been expunged from his record when he turned eighteen that May.

Now the prosecutors were trying to fry Ryan and the other boys, she said, because of the media and public pressure.

Smollen was so pleased with the way her language had affected her male colleagues that she decided to repeat herself. "No one is going to get butt-fucked on my dime," she said. And meant it.

In the end, they worked out a deal in which the boys would plead guilty to attempted second-degree assault, a felony without mandatory prison time, and third-degree assault, a misdemeanor. In exchange, the boys would serve 120 days in jail, of which 30 had already been served, and receive four years' probation, with a maximum of two years in prison if they violated the rules. At Smollen's suggestion, they were also to work with head-injured people so they could see for themselves the result of drinking and fighting.

Hofstrom flew to Arkansas and got the Kelly family's approval of the deal. Holcomb said she wanted the prosecutors to do what was necessary to "protect the community." Hofstrom said the bottom-line felony conviction was what was important.

When Hofstrom returned, he showed Smollen the affidavit he would file with the court in recommending the plea agreement. She was impressed with its fairness and accuracy; it reflected that there was provocation and that Paul Kelly hit Ryan Rushing in the back of the head.

She was still miffed, though, that the prosecution had let James Atwood and Patrick Wells, if not Paul Kelly himself, off the hook. She threatened to file a motion to compel prosecution. But then, she says, she let Hofstrom persuade her that "it was time to let the Kellys get on with their lives...for everyone to get on with their lives."

That July, the boys pleaded guilty. Judge Murray Richtel accepted all the plea agreements except Forest Timothy's.

After Ryan Rushing pleaded guilty, Holcomb said, "I guess I feel that if I were his parent, I would want my son to have a chance. He is so young. It was a very awful thing to do, but you want somebody to have another chance." The fact that Ryan came forward to admit what he had done and attempted to apologize to the family had influenced their decision to back the deal, she added.

On September 9, Forest Timothy was sentenced. "Plea bargains are necessary because each side fears that the jury will accept their opponents' version of the facts," Richtel said in explaining why he was accepting the deal. "To be more concrete, in this case the prosecution did not think that it could prove Mr. Timothy kicked Paul Kelly in the head, causing brain damage.

"In fact, despite sensational characterization of this case as involving a `brutal beating,' or `stomping,' the court is satisfied that the most likely cause of the tragic injury to Paul Kelly was this: while standing, Mr. Kelly was struck in the face with a fist and knocked to the pavement, striking his head on the pavement and, as a result, suffering brain damage."

Forest's deal was tougher than the other boys'; it included four years' probation, with up to eight years in prison should he violate the conditions. He was also given six months at Cleo Wallace residential treatment center for his drinking problem. Richtel said he had initially rejected Forest's deal because it did not account for charges pending from other crimes that had since been dismissed or Forest's escalating criminal behavior leading to the fight with Kelly.

The stint at Cleo Wallace was necessary, the judge said, because chances of Forest's rehabilitation at home were slim. "Although well-meaning and motivated by love, his parents minimized his negligent behavior at every step of its escalation. It is important that parents support their children, but not at all cost. Mr. Timothy got the wrong message from his parents about respect for others and the justice system."

Richtel told Forest to stay away from the Hill and to avoid contact with his co-defendants. And he asked Forest if he had anything to say.

"I feel in the time that I've been locked up, I have learned a lot about myself and others around me," he replied. "I now see that I used to see the world in a type of Technicolor, which is where you see how you live, think and act and don't see that other people have feelings, too. That they are humans, too."

"What," Richtel asked, "should the legal system have done about you before? ...You got off too easily, didn't you?"

"Yeah," Forest said. "I slipped through the fingers of the system one too many times, and then I've never really done..."

Richtel interrupted. "How come you slipped through?"
"I don't know, really," Forest replied. "I mean...I think I have a lot of offenses...and then they're, like, really minor but they're enough to aggravate and annoy the police and the justice system."

"Now, wait a second," said Richtel. "You think you're the victim in this case?"

"No, I'm not saying that," Forest said. Referring to the paper he'd brought to court, he continued, "I've learned a lot about violence. It is destroying our teenage population, and now we have to help solve the problem."

"What you and all kids are doing when you fool around with violence and alcohol is like running a red light," Richtel said. "You're seventeen. You're at a crossroad. You're on very thin ice. I have you on the shortest possible chain. So listen hard. I want you to make it...for you and the community.

"You've got a chance to make it, and I'll be very happy to let go of the chain. On the other hand, if you screw up, I'm going to yank you hard."

Then the judge turned his ire on the media. Earlier in the week, Smollen had given him a collection of clippings on the case, particularly the Camera stories. "This was a very complex case both factually and legally," Richtel now said. "The media's recurrent references to `brutal beating' and `stomping' were gross oversimplifications and disserved the public. They inflamed passions and gave the community the false message that serious crime would not be taken seriously."

Ryan Rushing was sentenced on September 21. His juvenile probation officer had written a glowing pre-judgment report of his behavior under her supervision. At the court podium, Ryan was tearful as he tried to express his regrets. "I'm sorry," he said, then couldn't go on.

In the silence, Richtel urged him to put all the people in the courtroom out of his mind. "I will, too," the judge said.

Finally, Rushing blurted out, "I never meant for anything like this to happen. I'm sorry."

When his son finished, Ben Rushing asked if he could speak for a moment. He had written an essay, "On Behalf of Ryan Rushing." He was still angry that the truth, as he saw it, had not come out.

Ben began by describing the confrontation on the Hill. "It escalated from words and intimidation to physical combat when one of Paul Kelly's friends inflicted the first blow because, and I quote, `he was pissed off.' It also escalated because of the actions of one of the college youths who had a shaved head and goatee..."

The judge interrupted. "What do you think this adds?" he asked. "Why the name-calling and why the airing of dirty laundry?"

"It adds..."
The judge interrupted again. "A person was seriously injured and their life was ruined," Richtel said. "Everyone in this case was at fault. And I've said it before. But I think it gives the wrong message to blame the victim."

Rushing replied, "I wanted to point that out because it wasn't the picture in the media of all the people that were participants."

"Well," the judge said, "I think the media, I hope, has gotten the message that this was not a brutal beating and not a stomping. I've tried to say that. And Mr. Hofstrom has tried to say that. The fact is that alcohol led to, in effect, the loss of a life. And I don't think that it achieves anything to disparage the victim."

Rushing agreed but continued to argue. "I guess my motive is that...the media is responsible for a public perception of something that we as a family had to live with, not nearly the extent of the Kelly family...I was trying to clarify that."

Richtel said he understood, but the point was that three young men had commited a crime. "If there was a crime committed by Paul Kelly, it's not a crime of the same magnitude," the judge added. "And if the press was less than responsible in this case, they didn't commit a crime."

Again, Rushing nodded and said he would skip further into his essay. He blamed both his son and Paul Kelly for not walking away.

"When Ryan first told me about his role in the fight on the CU campus, I knew he was in serious trouble, and I advised him to go forward and face his responsibility," he continued. "On that day, he chose to do the right thing. He became a man that day, and I will respect him for it forever."

Then Rushing criticized the campus police and the press, "which repeatedly on almost a daily basis reported only one side of the story. They ignored this account."

Richtel again stopped him: "Whose version of the facts appeared in the newspaper three days after this occurred? Yours. Didn't they report your entire story?"

Rushing said he would skip further and began praising the district attorney's office. "I trust they will follow through in prosecuting the remaining three college youths who were involved, as it is only fair and just that they be held accountable for their actions as well."

He wasn't trying to shift responsibility from Ryan, he said. But because of the press coverage, in a sense his son was a victim himself. "I know he has to live in this town, and it is going to be difficult."

Richtel interrupted one last time. "Look," he told Ben Rushing. "You did some really positive things in this case. I think that you supported your son. You didn't ask any favors...I think you're doing him a disservice now.

"He is not the victim in this case."
The next day, Justin Graber was sentenced. He, too, said he was sorry and had not meant to hurt anyone.

Judge Richtel wasn't convinced. "You're the driving force in this thing," he told Justin. "If you hadn't blindsided Paul Kelly, we wouldn't all be here."

On the Hill, nothing much has changed in two years.
Andy, who left Boulder after the Kelly incident, is back in town after a stint in New York City, where he hung out with an Italian gangster. Now he tells friends he's a black man trapped in a white man's body. Believes it so much that he exchanged a couple of his real teeth for gold ones.

Merchants still complain about the hanging out, the drinking, the fighting. The high school kids blame drunk frat boys; the college students blame little wannabe gangsters. Assaults are up on the university campus--from 41 in 1993 to 52 in 1994, the latest figures available--with only 15 percent cleared by arrest.

Last month a sixteen-year-old pleaded guilty to the April 27, 1993, murder of the theater manager.

Boys--stiff-legged and bowed out--continue to get drunk and scrap with each other for wearing the wrong color or saying the wrong thing.

According to Gary Patzer, a Boulder County deputy assigned to monitoring gang activity, there's been a big jump over the past four years. The gangs are everywhere. In the mountains. At the best schools. Some drive in from out of town to capitalize on the nice cars and techno-toys of Boulder. White skinheads have made the Hill their favorite gathering place. But where other gangs used to form around racial and cultural lines, that's no longer the case, Patzer says.

Boulder kids are attracted to gangs for the same reasons as poor minority kids, he says. Just as in East Los Angeles, the gangs become surrogate families, providing members support and a sense of identity they don't get at home.

Sagging heavy or wearing a hat backwards or shaving your head doesn't make you a gang member, Patzer acknowledges. But even kids who don't belong to gangs "are asking for it" when they dress like gangsters, "if for no other reason than the real skinheads, or Crips, or Bloods, will resent it."

Justin Graber's mother thinks the fight was blown out of proportion so that the police department could get more money for security on the Hill--which it did. "The businesspeople up there have been screaming for it for a long time," Mary McBride says. "Everyone knows that this sort of thing happens all the time."

Justin has been sticking to the conditions of his probation and attending culinary school full-time, McBride says. He's also growing out his hair. Although Justin had shaved his head for years, coming from Los Angeles--where everyone is into one fad or another--his mother had thought nothing of his appearance.

"Let's face it," she says. "The gangster look is in. Pick up a Mervyn's catalogue--it has baggy shirts and baggy pants for five-year-olds."

McBride is still gun-shy of the media. "I lost all faith that they are looking for the truth," she says. "Everybody knows what happened to poor Paul Kelly. They don't realize how it affected my family. I wasn't negligent. Justin has never been in trouble, and there was no reason for me to believe he would be.

"He didn't go out that night to beat someone up. Paul Kelly started this by hitting the car...and then James Atwood got it all going. I'm sorry someone got hurt, but it could have been any one of those boys."

Forest Timothy and Ryan Rushing have had a harder time than Justin following the rules of their probation.

Forest was arrested for careless driving and driving without a license. Prosecutor Hofstrom asked for a stiff sentence. "He's sitting on the edge, and jail might be the only way for him to shift," he told the judge. "He needs to understand that this system is not entirely concerned with protecting his welfare...He needs to feel some punishment."

Forest pleaded with Richtel. He was working and doing well in art at a local community college, he said. The judge placed him on a more intense supervision program. After spending 45 days in the Boulder County Jail, Forest was ordered to wear an electronic ankle bracelet to monitor his activities for the next four years.

Forest has apparently stayed out of trouble for the past year. He declined to be interviewed for this story. His stepfather, Ted Waitkus, did not return telephone calls.

Ryan's probation problems have been technical violations: He's missed or been tardy to appointments with probation officers, and he was dismissed from the hospital where he was supposed to be assisting head-injured patients after he got caught sleeping. Now they're talking about putting him in a halfway house.

He's trying, Ryan says. His hair is now in a buzz cut, but he no longer wears clothes that can be interpreted as gangster attire. Every weekday he dresses in a button-down shirt, tie, slacks and dress shoes to work as a salesman for an environmental equipment company, which his probation officer says is doing wonders for his self-esteem. He even has ideas for starting his own business.

But at nineteen years old, he is beginning to recognize the price he will pay for a felony conviction.

He can't vote. He can't be a doctor or a pharmacist, or work for the government. He can't join the military. Every time he wants to take out a loan or apply for a job, he must admit he is a felon. He is a marked man for the rest of his life.

So he makes the best of it. He doesn't drink "and never will again," he says. "And I'd rather be beat up than try to defend myself. Defend yourself and someone else may get hurt."

He can feel sorry for Paul Kelly yet still blame him for what happened that night. He sees the picture of the smiling, angelic-looking Kelly and recalls the guy with the shaved head, goatee and attitude.

Someday in the not-too-distant future, he hopes to move back to a small town in Texas, find a place where he can be just plain Ryan Rushing, a good guy, not one of the thugs who beat up Paul Kelly.

"I'm tired of having to explain myself...of what went on that night," he says. "I'm not the guy the newspapers said I was. I wasn't some badass out looking to hurt people. I'm not even very big or threatening. I was stupid and drunk and should have walked away...the way my dad always said I should do."

According to the Kelly family, Ben Rushing and the other parents should have done more. In January, on the Kellys' behalf, attorney Breit filed suit in Boulder District Court against the parents of Ryan Rushing, Forest Timothy and Justin Graber.

The lawsuit charges that the parents knew their sons were members of a "kicking gang"--apparently based on the comment one high school girl made to the police. The lawsuit also claims the parents knew their sons were "menaces to society but did nothing to restrain them."

"These defendants, without provocation, knocked [Paul Kelly] to the ground and then kicked him, over and over again, about his head and other parts of his body, until he was rendered unconscious."

Rushing faxed copies of his response to the suit to media outlets all over town, hand-delivering one to the Camera that asked for "a forum to discuss and challenge the lawsuit."

The response repeated Ryan's version of the fight, then got nasty. Ben accused Paul Kelly of being a skinhead, known for drinking and fighting, and said he could produce witnesses who would back up those claims. "We intend to dispute this suit," he wrote, "and furthermore, expose the Kellys' attorney for the ambulance-chaser we suspect him to be."

Breit, the first legal counsel for the Colorado Head Injury Foundation, notes that his firm's print is the smallest in the Yellow Pages. The Kelly family's lawsuit, he says, illustrates the need for the courts to keep up with societal changes and recognize that teenagers are not only more violent but more vicious in their violence--and that parents are in part responsible.

Parents have been immunized from accounting for their children's actions, Breit says, "and I think that's a lot of what's gone wrong." That this crime happened in Boulder demonstrates that violence as acceptable behavior among teenagers--from all socioeconomic classes and races--is spreading.

"Teenagers and college students have been fighting forever," Breit says. "But twenty years ago, there was a sort of unwritten ethic that once your opponent went down, it should stop."

Under Colorado law, liability for the acts of children can go only as high as $3,500. But if the parents are found to be at fault, the damages can be far greater. Mark Dumm, the Rushings' civil lawyer, says Breit's strategy is designed to get money--potentially lots of money--out of the defendants' homeowner's insurance companies.

Dumm has filed a motion to dismiss the suit based on a lack of evidence that Ryan's parents had the ability and opportunity to control his actions or that they knew of specific instances that would lead them to believe he had a "propensity to commit unprovoked attacks."

The lawyers for the other parents filed similar motions. Forest Timothy's attorney added a twist, designating James Atwood and Ian Graber as non-parties at fault. That means that even though the Kellys did not sue those two, if the case goes to trial and the defendants lose, it will be up to the jury to decide what percentage of fault, if any, lies with James and Ian.

Lawyers for the other families may file similar designations naming James Atwood and Ian Graber.

Dumm says he is now waiting to hear from the judge on the motions to dismiss the Kellys' lawsuit. If the case goes to trial, he adds, expect the specifics of what really happened on the night of April 16, 1993, to finally come out in court.

"As far as I'm concerned, the Paul Kelly criminal case is concluded," says Deputy District Attorney Hofstrom. "I don't see any particular reason to comment on it publicly."

James Atwood "no longer lives here," says a young woman who answered the telephone number listed under his name. There have been no new entries in his criminal file, nor any for Patrick Wells or Ty Ferley.

About the only person hoping that the Kellys' lawsuit goes to trial is Smollen, who says that's the only way the truth will emerge. "In all my years, there is no case I feel more passionate about," she says. "No case I feel was done a bigger injustice."

She keeps thinking about how the Kelly family insisted on getting an adult felony conviction for Ryan and the others. Without it, the civil case would have been much weaker. "I find it curious that the family insisted that Ryan and Forest be charged as adults," she says, "but now wants to sue the parents, saying they should have controlled their juvenile sons."

She keeps thinking about how Hofstrom convinced her it was time for everyone to get on with their lives, rather than pursue prosecution of the college boys. Their convictions would certainly have muddied the legal waters. After all, were Kelly's or Atwood's parents any more in control of their sons that night?

Breit filed the lawsuit after December, when the statute of limitations for any crimes the college boys might have committed expired.

Sherry Rushing sits in the living room of her neatly kept home in Lafayette, with its overstuffed chairs, entertainment center and coffee table cluttered with photographs of her children. She is trying to understand what makes her a bad mother.

Ryan had always been the most difficult of their children, but he wasn't as bad as the newspapers made him out to be. Her daughter, now seventeen, is a straight-A student active in school affairs; at thirteen, her second son is also a good student who has never been in trouble.

The hate mail and telephone calls have stopped, but she still can't go out of the house without wondering if people are talking behind her back.

And she's also still angry--especially whenever the Boulder newspaper uses that photo of Paul Kelly back in high school. That's not the same boy who struck her son, the boy with the shaved head. But no one is pointing a finger at his mother.

"The newspaper kept running Kelly's high school picture and a photograph of him at his high school prom," Sherry says. "They talked about what a good son he was and how he had plans for the future.

"Well, Ryan went to high school and he had a picture taken when he was all dressed up for the prom. But they never asked to print those...The newspaper wanted people to think of him as a monster.

"But he has been a good son, and I love and respect him. Of all those boys, including the guys in college, he was the only one to step forward and take the blame.

"He had plans and dreams for the future, too."
She looks out the window to where her other son has gone with his skateboard. He has strict orders to be home by five.

"Of all the kids in Colorado," she says quietly, "why did this have to happen to my child?"

Margie Holcomb says she can understand the pain the Rushings are going through. But that doesn't mean she's willing to forgive and forget.

"One of those boys said he kicked Paul's head like a soccer ball," she says. "I don't waste any time thinking about those boys...When your child gets into trouble over and over and over again and you do nothing about it, or you constantly bail them out, then, yes, I think the parents should be held responsible."

It wasn't her idea to sue the parents, she says, but she agreed after Breit explained that it was "legally what we had to do to make the lawsuit worthwhile."

She isn't worried about what might come out in court. And now, two years later, she can even laugh at the allegations that her son was a skinhead. "It was a total falsehood," she says. "He was always doing something he considered `artsy.' That's all it was."

Still, when she looks back, she wonders about the sequence of events that resulted in her son almost dying. Maybe if he hadn't shaved his head. Maybe, if James Atwood had kept his cool, nothing would have happened.

But wondering won't bring back the Paul she knew. That son has been taken from her. He is deaf in one ear and must take anti-seizure medication for the rest of his life. But the physical limitations are only one aspect of the changes. There are other, more subtle losses, things having to do with his personality, some of which she'd rather not discuss, and others she hasn't quite put her finger on. They all add up to a cloudy future for her son.

Paul visited Boulder a year ago to try to jog his memory. He still can't recall much of his life there, especially not the night of the fight. He told the press that the incident had made him wiser. "The one thing that has changed is, I don't trust people much anymore," Paul said. "I've tried to do it, but it doesn't work, and it ends up wrong. I have to change the way I approach people.

"It's why I got hurt. I trusted everyone."
He tried attending classes at the University of Arkansas but dropped out; his short-term memory difficulties make it nearly impossible to be a student. And like many head-injured people, Paul lacks motivation and often has to be prodded.

"He doesn't do his art anymore," his mother says. "He can. But he doesn't."
Although Paul seems happy and "takes pleasure in his days," she says he doesn't talk about what he wants to do with his life. He may never regain his independence.

"When I think about it, I cry still," she says. "We're grateful that he's alive and where he's at in his recovery. I love him. But I still grieve for the Paul I lost. For all that he lost."

But back in March, their lives took one last turn. Holcomb, who was visiting her family in Denver, won nearly a million dollars in the Colorado Lottery.

Noting that the odds of winning were about 1 in 5 million, Holcomb said the odds of what happened to her son must have been just as great.

"I don't know why it happened to me."
end of part 3

BEFORE YOU GO...
Can you help us continue to share our stories? Since the beginning, Westword has been defined as the free, independent voice of Denver — and we'd like to keep it that way. Our members allow us to continue offering readers access to our incisive coverage of local news, food, and culture with no paywalls.