An oral history of the legal issues surrounding the Littleton tragedy
Published in 2012 Colorado Super Lawyers magazine
on March 2, 2012
Updated on March 8, 2012
Within hours of Eric Harris and Dylan Klebold’s shooting spree in Columbine High School on April 20, 1999, local attorneys’ phones began to ring. Like everyone else, they were dumbstruck by the news that the heavily armed teenagers shot and killed 12 students and a teacher, then themselves. With national media invading their firms and counselors showing up from other states to publicly threaten lawsuits, these attorneys had to remain stoic and professional at all times. It wasn’t easy. “As a lawyer, it’s your job to be the only one in the room that’s not crying,” says Stu Stuller, who handled the research and briefing on behalf of the Jefferson County School District. “At that time, you start to doubt your own humanity.”
Here, from the perspectives of six Colorado attorneys, is a re-creation of the hours, days and months following the tragedy in Littleton, Colo.
Richard Kornfeld, of Recht Kornfeld in Denver, a criminal defense attorney who initially co-represented the Klebold family: I remember that day very vividly, because it was my wife’s birthday and I was having lunch with her. Then I came back to the office and heard about it, and very quickly Gary [Lozow, a colleague] got a call.
Jim Cederberg, a Boulder attorney with the Cederberg Law Firm, who represented Richard Castaldo, a Columbine junior shot eight times and paralyzed from the chest down: The first thing you hear from the family and from Richard is, he’s sitting out on the lawn outside the school with a young girl. It’s a nice April day, and the next thing you know, he’s paralyzed and being dragged out of there. The girl that was with him [Rachel Scott] was killed. He was trying to cope with that. His dad lived on the East Coast and got in touch with some lawyer in Baltimore, who got in touch with me. You got an 18-year-old kid in a wheelchair, you know? That’s a weighty matter to deal with under any circumstances.
Stu Stuller, a schools and education attorney, who did the Columbine research and briefing for Boulder’s Caplan and Earnest, which represents Jefferson County Public Schools: I first got wind that there was something going on from a paralegal in our office in an in-house email message—that shots were fired at Columbine High School. I immediately knew “That’s one of ours.“ Ironically, Susan [Schermerhorn, a colleague at the firm] and I had been in San Francisco for a presentation about the school shooting in Jonesboro, Arkansas. We met each other in the hallway [after the meeting] and said, “Well, that was really interesting, but how often is that going to come up?“
Kornfeld: It was a very emotional thing. There was a partners’ meeting shortly after this happened, about the propriety and the appropriateness of us being involved [in the defense of parents whose child killed so many innocent children]. There were some who were very uncomfortable, and there were others, led by Stanton Rosenbaum, patriarch of the firm, basically saying, “This is what lawyers do—maybe not what real estate or environment or business lawyers do. But it’s what I do.“ It was like something from a movie. I was both very disappointed and very proud of some of the things I heard. And I understand and respect concerns people had—if clients of the firm were uncomfortable, I’m not naive, I understand the effects this might have on business. At the same time, as a criminal defense lawyer, you can’t do better than [representing] an innocent person.
We got the call before there was even an absolute determination that Dylan Klebold was one of these kids. There was a concern of how they described the kids in the trenchcoats, and the parents said, “Oh, my God, this might be our kid.“ So the first situation was the status of—was Dylan alive? When Gary got the call, we didn’t know if we’d be representing Dylan or the parents.
Reporters immediately picked up on Klebold and Harris possibly belonging to the “Trenchcoat Mafia,” a group of disenfranchised and possibly violent students at Columbine.
Kornfeld: We became the conduit for the media. I have a background in journalism—I went to Medill at Northwestern. I know a lot of reporters. I have some experience with the media. But this was unbelievable. Stone Phillips from NBC was walking around our office on a Saturday, looking for us. I don’t know how he even got into our building.
John Richilano, a criminal defense attorney with Richilano Shea in Denver, who represented Chris Morris, a 17-year-old friend and co-worker of Harris and Klebold: It was very high-pressure. Almost daily, the Arapahoe County sheriff held press conferences and specifically mentioned my client’s name in a [way] I thought was highly improper and unfair in connection with the ongoing investigation. And that seemed to increase the media focus on Chris, who was quite innocent. I mean, I had news reporters from one of the main channels sticking their noses against my office window. There was one TV reporter who barged in and the conversation was like, “I’m going to check your guy out, and if what you’re telling me is a lie, we’re going to crucify him.“ And he never came back.
Bill Kowalski, managing partner and head of litigation at Caplan and Earnest: The newspaper was the first place I learned about the allegations that there was something called the Trenchcoat Mafia that was running loose in the school. So we talked to people in the school district that might know something about that—“God, what do we do with that? What are the facts?“ The difficulty we had was most of the people we wanted to talk to, starting with the principal, then the assistant principal, and the students who would know all these kids, they were all extremely busy, trying to reopen the school, attending funerals, [dealing with] their own personal emotional issues, trying to deal with all the kids and families. Everybody thinks of conducting an investigation: You sit down with somebody for an hour, hour and a half, you get the information and say, “Thank you very much.“ I don’t know if I had even one interview that was one and a half hours long of somebody I wanted to talk to—at least in the first seven months.
Maybe a year later, one of the Rocky Mountain News reporters called and asked about the lawyer conducting the secret investigation. I laughed and said, “There’s nothing secret about my investigation at all.“ We met with an editor and reporter at the Rocky Mountain News, and said we’re not hiding anything by doing this investigation. I was very upfront with them and told them this is what I did and why I did it. We didn’t give them the investigation. So they threatened to sue us.
The attorney general, Ken Salazar, at one point made a comment—he threatened to sue us for it. I thought that would be an interesting legal position, for the state’s top lawyers to be going after a lawyer’s privileged and confidential information. We eventually compromised. One of the things we did was agree to provide that report to the state archives. It’s under lock and key, protected, except per court order. There’s a 20-year time limit on it. Then it becomes public.
Stuller: There was an entire universe of legal issues that had to be dealt with on a daily basis—public meetings, public records, student records, access of school grounds, students’ ability to talk to the media, and on and on it went.
I remember getting a call, at the end of the day when I was at home, from Susan [Schermerhorn]. She didn’t ask me any questions. She just wanted someone to talk to.
Shortly after Columbine, attorneys for victims’ families filed lawsuits—against the Jefferson County Sheriff’s Office for neglecting certain wounded victims, and against the Jefferson County Public Schools, Columbine’s principal and some teachers for ignoring “warnings” from Harris and Klebold. Most of these lawsuits were dismissed, although the head of the governor’s Columbine Review Commission said at one point: “We can’t very well say it was a surprise that this attack occurred. We had all this information, but no one acted on it.”
Cederberg: Harris and Klebold had done an awful lot of things to foreshadow their intentions in violent writings that were submitted to teachers—violent videos they’d produced at school and other interactions with people.
Kowalski: Other kids had been interviewed. They said, “There was a day we were discussing our dreams,“ and it was a curriculum section about dreams in the psychology class. Harris talked about the dream of being in a shopping mall and shooting people. So the kids talked about that. When you just focus on that part of it, that’s a pretty dramatic accusation. So we asked the teacher, “How did this happen?“ And the teacher told the context of the entire class and other people sharing their dreams—and people do have violent dreams. In this case, the teacher did end up being a defendant.
Stuller argued in U.S. District Court against the application of the “Red Flag Theory” (in which teachers could be held liable for not sharing harmful or “red flag” student behavior with other educators) and the “Lord of the Flies Theory” (in which a psychological environment of intimidation and bullying can lead to violence). He cited 10th U.S. Circuit Court of Appeals decisions ruling schools have no “constitutional duty” to protect students from each other.
Kowalski: We just started to hear more and more as the media was developing the story around the “red flags“ issue—which included some writings and videos. Of course, the sheriff’s department was having its own significant problems with the families’ accusations that records in previous police reports were destroyed. After a few weeks, the school district started to hear more and more accusations directed at the administration and the teachers. So we did start to feel like we’re going to see a lawsuit at some point. We represented everybody.
Stuller: Those flags didn’t turn red until after the shooting. People saw all this information, they put it all together and in hindsight they say, “Oh gosh, why didn’t [teachers] see this coming?“ Up until that point you had this kid in a class talking about a dream. You had another kid in class writing a paper. They were saying there was a failure of these people to communicate and share information. Well, in order to make the constitutional standard, you had to show each of these individuals had actual knowledge of this threat. And [plaintiff’s attorneys for the victims] simply couldn’t show that.
Cederberg: We were trying to put together evidence that [teachers and school officials] had a lot of information in front of them and didn’t put two and two together. And [U.S. District] Judge [Lewis] Babcock didn’t care much for that argument. He issued a written order that pretty much addressed the arguments that we were making. The standard’s very tough, which is reckless indifference. Red flags—he didn’t feel that was enough to get where he needed to go to impose liability.
Frankly, we were asking in our motion to go in uncharted territory. We knew we had an uphill battle. There was no precedent for applying the kind of principles that we were trying to apply to the bizarre and outrageous facts of this particular case, where you’ve got kids who had this plot, and signaled the plot, who I thought were making somewhat extraordinary efforts to tell people they were not happy. … We never got to do any discovery to find out what exactly did happen. I don’t think we left any stones unturned. The legal system is the best one in the world, but it doesn’t provide a remedy for every harm that occurs.
Kornfeld: There was a pretty active criminal investigation with respect of whether the parents—our clients—had any criminal liability due to the actions of their teenage sons. That became the most significant legal issue we needed to deal with. The legal issues were not clear. From a legal point of view, they were adults, but from a practical point of view, they were still high school kids living at home. “We can’t charge the kids, so we better charge the parents.“ That didn’t happen.
Frank Patterson, a PI defense attorney with Patterson, Nuss & Seymour in Greenwood Village, who represented the Klebolds: I was absolutely convinced that there was no provable claim against either set of parents. Neither would have been found responsible for this under Colorado law.
The Klebolds and Harrises were never charged, but in 2001, their insurance companies agreed to a civil suit settlement in which they and other defendants paid $2.53 million to more than 30 victims’ families. In separate settlements, the Jefferson County School District paid an average of $15,000 to families of seven students, and the sheriff’s office offered to pay $15,000 to 11 families.
Patterson: It was difficult to get it all concluded, but it’s probably the most gratifying part about it. Up to that point, there wasn’t another school shooting in the country where the victims got any compensation, because the law [makes it] very difficult to place blame on somebody other than the shooters. The insurance companies could very well have said, “There is no obligation to pay, we’re not going to pay“—and that had been done in many states beforehand. In this case, the insurance companies for the various people all agreed it would be best to pay their insurance money into the pot to assist the victims. The heartache and the years of dragging this out were avoided because the insurance companies agreed to pay their money.
Cederberg: I felt the government agencies saying, “We’ll pay a nominal amount,“ was a reasonable approach. It wasn’t time for them to play hardball at that point.
Kowalski: Steve Wahlberg [attorney for wounded students Sean Graves and Lance Kirklin] called me and said, “I’d like to talk to you guys about a global settlement.“ We said, “Sure.“ It took a while for them to get their side together. They came up and gave us some really, really high number—put it that way. And so we were polite. We said, “OK, thank you, we’ll communicate that to our client.“ We’re all just kind of chuckling: “At that number, we’ll take it to the appeal [rather than settle].“ Then Wahlberg called me a few days later and said, “I’ve been rethinking that number.“ They came back to us with a much more realistic number. So that’s how we then negotiated down to the $15,000. It was probably a little give-and-take, but it wasn’t much. It got done relatively painlessly.
Jefferson County Sheriff John Stone initially showed the videotapes Harris and Klebold had made to reporters and families, but their parents insisted they were private family property. The Denver Post sued to make public the tapes, in addition to 936 pages of the killers’ writings, day planners and papers. In 2005, the Colorado Supreme Court agreed with the Post, but allowed Sheriff Ted Mink to decide which portions to release. Citing public interest, he chose to keep the tapes private but make the papers public.
Patterson: Everybody wanted to know about the Klebolds and the Harrises, and when they found out there had been these “basement tapes,“ everybody wanted to see them. It was like a suicide note.
There were websites everywhere about Klebold and Harris, and there were harmful ones where disaffected people in society had made them heroes. In addition to protecting the family’s privacy, perhaps the biggest goal was to help avoid copycat killers. In terms of legal issues, that was the most difficult and most protracted and hardest thing we did. The Denver Post was taking the lead on behalf of all these media outlets and pursuing valid First Amendment arguments as to what is and is not public information. We won the point. They withheld the most dangerous copycat-stuff-type things.
The privacy issue is the one that’s going to have the longest-lasting impact on all of us. The privacy issues raised by Columbine were at the crest of the wave of privacy [laws] developed over the past decade. The federal Gramm-Leach-Bliley Act [the Financial Services Modernization Act of 1999] has privacy components to it.
Cederberg: The question is, did people learn from it? Are we doing better with Columbine-type situations than we did before? I think so. What you hear in the media, the plots being foiled are more potentially harmful than the ones being carried out, so that’s a good thing. Now, when you’ve got some threat that kids are making, somebody is probably going to take that seriously.
Kornfeld: When I was growing up in Denver, the police officer would take the kid to the house, and if the police officer felt the parents were capable of dealing with it and taking it seriously, that was it. You didn’t run through the system. You didn’t get charged. And now everybody gets charged, to the point where it’s a very robotic application of the rules. It’s not a lot of common sense. That’s a direct result of Columbine. Nobody wants to give a kid a pass or not deal with something. There are no free passes for kids anymore.
I’ve got two kids in public high school. I want them to be safe, also. I understand schools and law enforcement erring on the side of caution. The problem is, the criminal justice system should be predicated, especially on the juvenile side, on assessing every defendant on a case-by-case basis.
Richilano: Public discourse and social interaction changed. People became more wary of each other. People came to realize that something horrible like this can happen. My hope was, in terms of social interaction, people would be more sensitive to this whole bullying issue.
Obviously, there has to be school security. Then you wonder if it goes overboard, when a very, very small grade-school kid gets suspended from school and potentially charged with a crime for carrying a pocket knife.
I don’t know that the law changed. … But, you know, the world changed.