There are several issues here that will affect the outcome of this suit brought by Fleet and Priscilla White.
The first challenge to making the Ramsey Grand Jury indictments public was establishing in court that, even though charges were not pursued by the DA, the charges considered by the RGJ were an "official action". This became kind of a gray area because of the situation created when Hunter refused to sign the True Bills and hid that fact behind the claim of the secrecy of GJ proceedings. Once it was learned that the RGJ did indeed return TBs, Charlie Brennan’s suit for release of the “official actions” of the RGJ was difficult for a judge to deny because of the laws in Colorado. In any event, Judge Lowenbach’s ruling established that they were (with one caveat that I’ll get to later in this post). The CO statutes specifically state that any “official actions” that are maintained by any "criminal justice agency" (in this case, the DA’s office) are subject to public disclosure -- unless there are grounds for denial. Those grounds would be if public disclosure would be “contrary to the public interest”, or if disclosure would violate another conflicting state law or court order (
C.R.S. 24-72-305). Once requested, the burden of proof then falls on the custodian of the records (the DA’s office) to prove grounds for denial.
As to what is an “official action”,
C.R.S. 24-72-302 defines it as:
(7) "Official action" means an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.
Annotations in
C.R.S. 24-72-303 (
Records of official actions required - open to inspection) and in
C.R.S. 24-72-304 (
Inspection of criminal justice records) both specifically address whether a GJ indictment is an “official action” because the issue had been settled in the People v. Thompson case (attached above in
cynic’s first post). Those statutes each state:
A grand jury indictment is a criminal justice record of official action presented in open court, the full release of which, save the identifying information of any alleged victims of sexual assault contained therein, is not contrary to public interest. People v. Thompson, 181 P.3d 1143 (Colo. 2008).
The mere fact that an indictment contains detailed factual allegations that would otherwise be subject to grand jury secrecy does not warrant that the indictment be sealed. People v. Thompson, 181 P.3d 1143 (Colo. 2008).Thompson, 181 P.3d 1143 (Colo. 2008).
The only thing in the above statute that I see which may a source of contention is the wording “
criminal justice record of official action presented in open court”. Since Hunter didn’t sign and present the indictments in open court as is the normal procedure, he created this hinky, gray area that will have to be determined by a judge.
When Judge Lowenbach’s order (
http://extras.mnginteractive.com/li... Release of Official Action of Grand Jury.pdf) was released, I expected the entire RGJ indictment document to be released. But instead he decided to release only the “charges” within the document that were found by the RGJ to be “true bills”. However what I questioned in his ruling was what he stated he felt (in this specific case) was what established them as “official actions” of the RGJ.
In his ruling, Lowenbach says that “the only pages that are ‘official actions of’ the Grand Jury are those that are signed by the Foreman of the Grand Jury.” The problem here is that each charge is signed by the Foreman -- either in the space for “A TRUE BILL” or the space for “NO TRUE BILL”. So even though no True Bill was found on the other charges, the charges themselves were actually signed by the Foreman making them (IMO) “official actions” of the RGJ (according to Lowenbach's stated definition).
Some may recall that I had asked a lawyer friend of mine about this specific issue in another thread (
http://www.websleuths.com/forums/sh...enet-Ramsey%92s-death&p=10449740#post10449740). That lawyer wrote the following in response to my question:
I do not know why Judge Lowenthal chose to release only those portions of the indictment that he did. There is really not much law in Colorado about the status of grand jury materials when the GJ votes to indict but the DA chooses not to prosecute. He may have felt that the partial release was a reasonable compromise between the competing arguments for total secrecy and total disclosure. But only he knows why he ruled precisely the way he did.
But the issue is even more complicated in the fact that the entire document is the “indictment” regardless of whether one of its pages is signed or not; and as such, it should have been released in its entirety because the entire document is the result of the GJ’s investigation and is its only “official action”.
Also, I should point out, while it seems at first that the emails and letters between White and the DA’s office are being “nit-picky”, all of the back-and-forth between them served a purpose. White is trying to establish several positions and facts that are required before proceeding. These things are detailed in statutes 24-72-301, 302, 303, 304, and 305. The DA’s office probably knows that and is trying to avoid giving him what he needs to proceed. But because of his persistence, White succeeded in getting the information.
I don’t know how the Whites’ suit will be settled (or even if it will make it to a courtroom without being dismissed). There are too many issues here that are simply not spelled out in the CO statutes. Technically, I think the statutes require that the other pages be made public. The Whites want it, journalists want it, the public wants it, and even the Ramsey lawyers say that he (JR) wants it. Why
not release it? The portions that
have been released already tell us what the RGJ probably concluded. The other charges would simply tell us what other possibilities were considered and probably make the RGJ conclusions more apparent to those who refuse to see it. And the fact that the other charges were not agreed to by a majority of the RGJ allows enough doubt about possible guilt that they shouldn’t be considered proof of guilt. IOW, no one would be maligned by the release of the entire document and it is therefore "not contrary to the public interest".
. After the investigatory process and presentation of evidence, the “indictment” document was written (probably by M. Kane acting for the DA’s office) for the jurors to vote on each specific possible charge on any suspect developed by the GJ. That indictment document on each suspect may have an opening page (summarizing the case) and a closing page (for the Foreman and the DA to certify the results with their signatures). If that is the case, there are a total of seven charges that were considered for each suspect (not necessarily the nine total charges that others have speculated -- see note at end of this post). At the end of the GJ process, when the jurors voted on each developed charge, if at least nine jurors agreed on probable cause for the charge, it is signed by the GJ Foreman in the space for a “TRUE BILL”. If OTOH, there are less than nine jurors who agree on probable cause, the GJ Foreman signs in the space for “NO TRUE BILL”. There does not have to be nine or more jurors voting for a “NO TRUE BILL”, as suggested by Silverman’s article. If eight jurors voted for a “TRUE BILL”, that means that four did not, but the Foreman would sign in the space for “NO TRUE BILL” (because the GJ had failed to find probable cause on that specific charge). If what Silverman wrote was correct, what would they do if the GJ was split 50/50 on probable cause? In that case there would be not be a determination of “True Bill” or “No True Bill”.
