Boulder Shooting Prosecutors And Defense Attorneys Spar Over Pre-Trial Publicity

Hart Van Denburg/CPR News
Visitors at the makeshift memorial fence outside King Soopers supermarket on Table Mesa Drive, Monday, March 29, 2021.

Boulder prosecutors this week pushed back against arguments made by defense attorneys representing the alleged King Soopers gunman that there should be a gag order on the case prohibiting district attorneys and law enforcement from talking about the investigation.

Public defenders representing an Arvada man on multiple murder counts last week asked Boulder Chief Judge Ingrid Bakke to prohibit law enforcement and prosecutors from discussing the case in public or with reporters moving forward.

They argued the media response and interest in the case has been “overwhelming” and “unprecedented,” which could taint a jury pool and prevent the 21-year-old man from getting a fair trial.

“The trial courts must take strong measures to ensure that the balance is never weighed against the accused,” wrote Megan Ring, head of the Colorado Public Defenders Office, in a filing, along with several other attorneys representing Alissa. “The continuing media coverage has begun to taint any potential jury pool. There is no legitimate purpose, at this stage of the proceedings, for the District Attorney, his agents, or law enforcement agencies to be making any public statements concerning the case.”

In a Monday afternoon filing, Boulder District Attorney Michael Dougherty pushed back on the suggestion that he or any law enforcement officials had spoken out of turn since the March 22 attack that killed 10 people, including a Boulder police officer.

“To the extent that the People responded to questions posed by the media regarding the above listed topics, the responses were limited and in compliance with all ethical requirements regarding public disclosures involving a pending case,” Dougherty wrote. “While every criminal defendant maintains the right to a fair trial, the public has the right to remain informed regarding cases of interest to the community.”

Boulder Police and both state and federal prosecutors have held four press briefings since the shooting. The accused gunman has had one court appearance and remains in custody. His next status conference is May 25.

Dougherty wrote that in the days following the shooting, he reminded all law enforcement agencies helping with the investigation that they were under rules of professional conduct.

“Please ensure that all law enforcement officers, officials and staff who may interact with the press have been reminded of these rules,” Dougherty wrote to law enforcement officers and attorneys helping with the case on March 23. “Our failure to comply with the above ethical obligations would likely have a negative impact on the prosecution of this case.”

In the brief filed Monday, Dougherty said if there was going to be any precedent on pre-trial rules, the judge could look to how District Court Judge William Blair Sylvester ruled in the Aurora theater shooting case, in which an Aurora man was found guilty of a mass slaying in a movie theater. 

Because of the number of people killed, and the unusual circumstances, that case drew international attention far greater than the shootings in Boulder.

Judge Sylvester published pre-trial publicity instructions that required all attorneys — both defense and prosecutors — to follow professional conduct rules, which govern the type of statements they can make outside of court to the public and news media, while still allowing them to answer some questions.