Routt County commissioners consider paying newspaper’s $10,000 legal bill
June 9, 2014
Steamboat Springs — The Routt County commissioners are likely to decide Tuesday whether to compensate the Steamboat Pilot & Today for legal fees amounting to $10,287.85, which the newspaper incurred while defending itself last month from a suit filed by the County Coroner's Office. The suit sought to block the newspaper from obtaining an autopsy report on the cause of death of a 3-year-old Steamboat boy, Austin Davis.
The result of the court hearing May 21 was that District Chief Judge Michael O'Hara ordered Coroner Rob Ryg to release the autopsy report as a public document under the Colorado Open Records Act.
Davis was found unconscious in a cabin at a campground on the west side of Steamboat Springs March 27 by his mother, Meghan McKeon. She has been charged with two counts of felony child abuse resulting in the death of her son.
Both County Attorney John Merrill and District Attorney Brett Barkey recommended Monday that the county pay the fees rather than risk a bigger legal bill that could result from going to court to resist paying the existing attorney fees.
Barkey said he didn't think an appeal to the judge would be successful, though he thinks a different judge in a different district might have found in his favor in the case.
"I still believe Judge O'Hara was wrong, but I have to respect his decision," Barkey told the county commissioners. "The possibilities of appeal are remote and unlikely to succeed. Once a judge makes that decision, we're just spending more money to appeal it."
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Merrill recommended the commissioners approve a supplemental budget in order to pay the bill from the coroner's budget.
Barkey, who provided the impetus for the suit, explained to the commissioners that because the coroner's office held the autopsy report, it was the appropriate office to file suit to keep the report closed. He added that if the commissioners were not willing to pass the supplemental budget, he would find a way to pay the fees out of his budget.
Chris Beall, the Denver attorney representing the Steamboat Pilot & Today in court, successfully argued that Colorado lawmakers have affirmed autopsy reports are public records that must be released to the public unless they would cause substantial injury to the public interest that the lawmakers never could have foreseen.
During the hearing, Judge O'Hara said he didn't think the details of the autopsy report met that standard.
Barkey said Monday that although he believes in transparency regarding public documents, he feels strongly that there are criminal cases where it's necessary to withold evidentiary documents for a sufficient time to avoid influencing witnesses.
“I'm a complete believer in transparency of information and releasing these things at the right time," he said. "One potential witness has left town because (a Pilot & Today) reporter tried to call him, find him."
Earlier, Barkey told the commissioners, "My position has been and continues to be, that the single most important piece of evidence in a homicide is the body, and protecting that single most piece of evidence is critical."
He said that although in an investigative sense, the importance of the details of the autopsy report in the Davis death might not be as "dramatic" as in other cases, he could foresee circumstances in which divulging the details of someone’s death could undermine the case against the accused.
"I'm afraid of the next case, where we have wounds on a victim that only the killer knows about. What have we given up? Information that only we and the killer know about,” Barkey said. “We don't share details of investigations while the investigation is going on or until we get to court. I feel very passionate about that."
Barkey also tried to seal McKeon’s arrest warrant and affidavit back in April, and the Steamboat Pilot & Today filed a motion asking for the documents to be unsealed. Routt County Judge James Garrecht ruled in favor of the newspaper and ordered both documents be made public.
County Commissioner Steve Ivancie told Barkey he understood that it was the precedent that might be set by releasing the autopsy report that the DA was concerned about.
"I'd like to know, whose interests are being served here and at what expense?" Ivancie said.
Commissioner Doug Monger observed that continuously relying on precedent-setting as a justification can undermine the main argument and that the details that Barkey sought to protect in the autopsy report were revealed by a family member of the victim in advance of the court hearing anyway.
Monger added he wished he'd had more opportunity to understand that the coroner's civil suit would put the county at risk for attorney's fees.
"The big thing that really pisses me off is we now have to pay this $10,000," Monger said. "That’s what irked me.
"In my mind, even as John Q. Public, we want to let all this information out unless it really does have an impact on your investigation," he told the DA.
Barkey promised better communication the next time a similar issue arises.