Too quiet: Experts say Aurora massacre gag order being misread

AURORA | More than 10 days after a gunman killed 12 at an Aurora theater, the slayings remain the biggest topic of conversation around town.

But many of those conversations quickly end with two words: Gag order.

From the University of Colorado, where Holmes studied neuroscience, to virtually every branch of Aurora city government, officials in recent weeks have declined to comment on specifics about the case, citing a judge’s order. Even the Aurora History Museum pointed to the gag order when officials there declined to comment on the future of a memorial to shooting victims across the street from the theater.

Aurora City Attorney Charlie Richardson said his office is reading the gag order strictly. When asked if city officials are reading this order more strictly than they have others, though, Richardson was reluctant to comment further, again, citing the gag order.

“I can’t even comment on that, because we’ve never been motivated by gag orders, there has obviously never been a tragedy like this,” he said.

The judge in the criminal case for accused shooter James Holmes, Judge William Sylvester, has tried to keep a lid on the case, issuing a gag order three days after the shooting and sealing many documents in the case.

Several media outlets have filed motions asking that documents in the case be unsealed. That issue is scheduled to come before Sylvester at a hearing Aug. 9.

Experts say the order is being read too broadly, and in some cases, erroneously.

“It’s unusual to see this kind of umbrella-like approach to limiting information about the case,” said Ken Paulson, president of the First Amendment Center, a nonpartisan, nonprofit center at Vanderbilt University.

Paulson said gag orders like the one in Holmes’ case are fairly common in high-profile cases and designed to keep lawyers and law enforcement from talking to the press.

But with a case like this, where virtually everybody in the country is aware of what happened and talking about the case, the orders don’t mean information about the case stops.

“This is the single most visible crime of the year,” he said. “There isn’t an American that isn’t talking about it. There is no way to create a cone of silence around this case.”

This gag order is odd, Paulson said, because it has been cited by some clearly non-law-enforcement entities, including some branches of city government and the University of Colorado.

“Typically, a gag order is designed to limit the release of information by lawyers and law enforcement officials, period,” he said.

A few days after he handed down his initial order, Judge Sylvester made a second order applying specifically to University of Colorado. That order barred the school from releasing any details typically available under the state’s open records law, including emails Holmes may have sent over the university’s email system.

Jacque Montgomery said the hospital has been included in gag orders before and is taking the order seriously.

“Our university is totally committed to assisting law enforcement authorities in their investigations and in honoring both their requests and the court orders that prohibit the sharing of specific information,” she said in an email. “Our highest calling as individuals and as an institution is to ensure we do nothing that impedes the investigation or justice for the victims and their loved ones.”

Citing the order, the school in recent days has declined to discuss some aspects of the case, including a package Holmes sent to his psychiatrist at the university and whether he had items mailed to him at the school.

At city hall, Richardson has told city staff not to comment on the case and ask anyone seeking information to file a formal records request that can be reviewed by a lawyer from the city.

That process has led to so many requests, Richardson said, that the city has hired an outside law firm to help handle them, which have included requests for blueprints of the theater and other documents from the building department.

Richardson said with every request, he and his staff want to make sure the documents won’t play a role in the criminal case.

“If it could, do I want to be the person who goes down in history as being one who interfered with the successful prosecution of this individual by authorizing the release of something that I shouldn’t have?” he said.

So far, the city has released the contract with Rural/Metro Ambulance for emergency medical services in the city, and a log of open records requests it has received. That’s it.

Paulson said that in part because of the OJ Simpson murder trial almost two decades ago and the constant leaks that surrounded it, judges and local governments often proceed with an abundance of caution during the aftermath of a major incident like this.

But sometimes officials can be too careful, he said, and block the public from understanding how something as horrible as the theater shootings could have happened.

“It sounds to me like people are trying to be so responsible that they are short-circuiting the system,” he said. “And giving short shrift to the First Amendment.”