CFOIC seeks theater killer’s authorization for release of spending records related to his defense

By Jeffrey A. Roberts
CFOIC Executive Director

Nearly two years after a jury convicted James Holmes of murdering 12 people and wounding 70 others at an Aurora movie theater, Colorado taxpayers still don’t know the total cost of the case.

But the killer himself might be able to help shed light on that unanswered question.

A $3 million estimate made by The Denver Post doesn’t include the publicly funded Office of the Colorado State Public Defender, which contends that ethical rules bar the disclosure of records showing how much it spent to defend Holmes.

James Holmes

Last week, the Colorado Freedom of Information Coalition sent a letter to Holmes, via his former attorney, asking him to authorize the public defender’s office to make its expenditure information public.

“While we don’t believe it is correct, the office of the public defender has claimed that it is prohibited from disclosing any information about its representation of James Holmes without his permission,” said Steve Zansberg, the CFOIC’s board president and a First Amendment attorney. “Thus, we have asked Mr. Holmes to provide that permission.”

In a guest commentary published in September 2015, state public defender Doug Wilson wrote that Rule 1.6 of the Colorado Rules of Professional Conduct “forbids any attorney representing an individual client from revealing any information relating to the representation of that client without the informed consent of that client.”

“When our critics complain about a ‘lack of transparency and accountability,’ they are really complaining about the fact that we have followed the law by steadfastly refusing to release to anyone case-specific information relating to our representation of James Holmes,” Wilson stated. He also cited the U.S. Supreme Court’s 1963 ruling that the Sixth Amendment guarantees a right of counsel for defendants who can’t afford to pay attorneys.

But in Zansberg’s opinion, the aggregate amount of money paid by a third party (in this case, the taxpayers of Colorado) to handle a legal matter for someone else (Holmes) “is neither subject to the attorney-client privilege nor is it within the expectation of confidential information subject to the attorney’s rules of professional conduct.”

Zansberg noted in his letter to Holmes that 18th Judicial District Attorney George Brauchler, a 2018 candidate for governor, has released financial records related to the prosecution. “The public,” Zansberg wrote, “is entitled to know the full cost of Mr. Brauchler’s decision to pursue capital punishment in your case.”

Instead of imposing the death penalty, a jury in 2015 sentenced Holmes to life in prison.

Because Holmes is behind bars in an undisclosed location out of state, the CFOIC cannot try to contact him directly. Zansberg asked the public defender’s office to transmit the letter to Holmes along with a consent form.

The public defender’s office hasn’t yet acknowledged receipt of the letter.

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