Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Must be something in the water up here at altitude. In the past decade or so, the sparsely populated state of Colorado has seen far more than its share of high-profile legal tussles and certainly more courtroom controversy than any jurisdiction would welcome.
First there was the Rocky Flats' federal grand jury dustup. Then there was the JonBenet Ramsey murder case catastrophe. Then there was the hubbub over the lost documents in the Timothy McVeigh trial. Then came the debacle over the Columbine High School shooting investigation and the hapless Kobe Bryant rape prosecution, replete with all the administrative errors you'd never want to see in a case. If Florida deserves its reputation for zany elections, Colorado deserves one for zany developments in its criminal justice system.
On Thursday, that reputation crystallized and expanded with two bits of news about Columbine and Kobe. On the Columbine front, according to both Denver papers, a state grand jury concluded that local officials "kept under wraps" an embarrassing draft of a search warrant never presented to a judge before the school massacre that might have enabled the police to stop Eric Harris and Dylan Klebold before they started shooting.
On the Bryant front, the Vail Daily newspaper, the hometown paper for Eagle, Colo., published on its Web site the of the interview Bryant gave to police investigators just before he was arrested on a rape charge. How did the paper get the transcript? It arrived unannounced in the mail, just like you see it in the movies. When it comes to media leaks, who says New York and Washington get all the drama?
Of the two stories, the news about the is by far the more significant and troubling. For years, some in the Columbine community had alleged that local law enforcement officials did not follow up on pre-attack clues about the criminal propensity of Harris and Klebold. And for years those officials vehemently and emotionally denied that they could have done more to prevent the massacre.
But the grand jury concluded that Jefferson County officials "hid information about what they were told before the Columbine attack," as the Rocky Mountain News put it in Friday's edition. And the paper disclosed a related report by Colorado's Attorney General disclosed allegations that a local police officer "ordered the destruction of a 'pile' of Columbine records and uncovered evidence that key documents were apparently purged from the computer system at the sheriff's office in the summer of 1999."
What does this mean? Ask Joe Kechter, the father of a young boy, Matt, who was killed at the high school in April 1999. "I learned that everything we suspected for these years was right, and that a few bad people up there in Jeffco did things to make a lot of very good cops look bad that were trying to do their jobs."
Actually, Mr. Kechter, it means more than that. It means that public officials here were more concerned with their own reputations than with providing their constituents with the truth of a matter of immense public interest and import.
It means that the federal judge who dismissed the Columbine lawsuits did not have the benefit of all the information he should have had. And perhaps most jarring of all, it means that local law enforcement failed —- by not pushing for that search warrant to be placed before a judge before the 1999 attack —- to adequately protect the citizens of their jurisdiction and then lied about their failures.
The news raises a series of vital questions, the most pressing of which is why the same grand jury that expressed "concern" and "suspicions" about the cover-up did not go ahead and indict something for it. Grand jurors, you hear all the time from talking-head lawyers, generally are willing and able to indict anyone for anything so long as their prosecutors want them to. Grand juries indict people all the time on flimsy evidence and for political reasons.
So why no indictment here? Surely the victims of Columbine deserve at last some form of justice. And surely the law enforcement community involved deserves some sort of punishment, even if only for its deterrent effect, for handling this matter from Day One with, at best, abominable incompetence and selfishness, and, at worst, criminal negligence and obstruction of justice. The whole episode is shameful; a black mark upon the government that the governed ought soon not forget.
Which brings us to the Bryant case. According to the released transcript, dropped over the newspaper's transom "Front Page"-style, Bryant initially denied that he had engaged in sex with the woman who would become his accuser. He admitted that he had had another sexual encounter with another woman who was not his wife. He conceded that he didn't know the young woman's name. And he suggested that he would have liked to settle the matter in some fashion without involvement from the law enforcement community. In short, the transcript itself adds only the details of what we already pretty much knew about the rape charge against him. It is not a game-changer and would not have altered the outcome of the criminal case against the basketball star.
Prosecutors would have used it to try to portray Bryant as a lying, conniving rapist. Bryant's attorneys would have used it to portray him as a young man who initially lied about adultery and who then came clean. Nor will the transcript have a huge impact on the civil case that still is pending. The fact is that whatever hay prosecutors or the plaintiffs' attorneys might have been made about Bryant's initial police interview was neutralized almost at the outset of his criminal trial when he conceded that he and his accuser had had sex.
What is far more significant than the transcript itself is the manner in which it was publicly disclosed. Obviously, no one on Bryant's side of this equation would have mailed it to the local newspaper —- no Karl Roves employed by Bryant, as near as I can tell.
So it is fair to assume that the leak came about from Bryant's prosecutors, or from the police, or from his alleged victim's attorneys or even perhaps from her family. If this is so —- and you can bet it is —- it represents the worst sort of frontier justice imaginable.
Having been beaten like mules during the criminal trial by defense attorneys (who were supported in their arguments over and over again by the trial judge and the Colorado Supreme Court), the "losers" in that case now are trying to "win" by cheating. It's foul play. It's a breach of ethics and probably the law. It reminds me of the current presidential campaign, with all of its out-of-bounds allegations, and there is really no excuse for it. I hope the federal judge now presiding over the civil case -- the same gritty judge who handled both Oklahoma City bombing trials —- calls the lawyers into his office and threatens them with jail should any of this nonsense happen again.
Why, oh why do all the freakish turns in the law have to take place in Colorado? Is it the lack of oxygen in our air? Is it the relative proximity of the sun? Do we breed or train ineptitude into our lawyers and judges and cops and clerks? If you have an answer, by all means let me know.
By Andrew Cohen
Copyright 2004 CBS. All rights reserved.