By Jeffrey A. Roberts
CFOIC Executive Director
A Las Animas County District Court judge has ordered the county coroner to pay attorney fees and court costs for improperly denying a Trinidad resident’s request for the autopsy report on a murder victim.
Judge J. Clay McKisson wrote that the Colorado Open Records Act (CORA) requires the still-to-be-determined award because he could not rule that releasing the report to Stephen Hamer would cause a “substantial injury to the public interest.”
Hamer, publisher of the Facebook-based community news site All Things 81082, effectively won his lawsuit against the coroner in June when the judge in the criminal case against Cameron Johnson-McCann ordered the disclosure of the autopsy report on Michael Dufour, whose decomposed body was found in Johnson-McCann’s apartment in February 2018.
Third Judicial District Attorney Henry Solano, representing Coroner Dominic Verquer, tried to get the civil case dismissed as moot. But McKisson determined it would be “unfair” to deny Hamer “his statutory right to attorney fees.”
Hamer was represented pro bono by Denver attorney Tom Kelley of Killmer, Lane and Newman. Kelley is a Colorado Freedom of Information Coalition board member and CFOIC’s past president.
Solano originally denied Hamer’s request for the Dufour autopsy report under the Colorado Criminal Justice Records Act, even though the Colorado Court of Appeals held in 1987 that autopsy reports are not criminal justice records and may be kept from the public only by using a procedure spelled out in CORA: Coroners must go to court and show that releasing an autopsy report would “do substantial injury to the public interest.”
McKisson noted the 1987 ruling in his order, issued Wednesday. He also noted that CORA specifically excludes autopsy reports from a list of records that must be withheld if requested by the public.
Solano contended that releasing the autopsy report would taint the jury pool in the Johnson-McCann second-degree murder case. The report’s graphic description of Dufour’s death “could infame the passions of the community” against the defendant, he wrote in a court brief.
Kelley, in a brief, noted that the facts of the case already were known to the public due to the release of an arrest affidavit. Information in the autopsy report, he contended, “pales in comparison to what is already available to the public, and therefore is unlikely to ‘cause’ any consequences of the sort imagined by the (coroner).”
McKisson will determine a “reasonable” amount of attorney fees and costs. He gave Kelley 21 days to submit supporting documentation.
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