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Number reaches $4.5 million — and that doesn't begin to count defense attorney salaries and some expenses still to be released by prosecutors

No one knows exactly how much taxpayer money was spent on the Aurora theater shooting case, but the three-year investigation and trial is surely one of the most — if not the most — expensive in Colorado history.

Figures obtained by CU News Corps from several public agencies reveal that the investigation and trial has cost at least $4.5 million in total, and those numbers will rise even more when the 18th Judicial District releases final figures early next year. Ten attorneys’ salaries for both sides — another $4 million — are not included in this figure, because they would be paid regardless of the trial happening. The ACLU of Colorado estimates the average cost of a death penalty trial to be $3.5 million, before any appeals.

“Given how much the prosecution cost, plus ancillary costs like security at the courthouse and police overtime, it’s a safe bet to say this was the most expensive case ever to be tried in Colorado,” said Steve Zansberg, president of the Colorado Freedom of Information Coalition.

But this is still only an educated guess from the longtime media lawyer — nobody can say with certainty what the costs of this trial actually are. Nobody except the people who spent the money.

CU News Corps opened official records requests with multiple entities, including the 18th Judicial District, the Colorado Bureau of Investigation, the Arapahoe County Sheriff’s Office and the Office of the State Public Defender. All requests were fulfilled, except that of the State Public Defender, who replied only with the salaries of the five attorneys who worked on the case for three years. Nobody outside of the OSPD knows how much money was spent on psychiatric experts, forensics, travel or any additional costs.

State Public Defender Doug Wilson has been under scrutiny for not releasing his office’s bill for the trial, but Wilson said his ethical obligations to protect his client’s communications and confidentiality prevent him from doing so.

“My job is to protect that person sitting beside me,” Wilson said. “I have no duty or loyalty to you as a citizen, or to the victim, or to the governor or to law enforcement. I have one duty and that is to protect that one person sitting beside me, and we believe in that.”

Colorado’s public defenders and prosecutors are now engaged in a very public spitting match over who spends how much in capital punishment cases and how much the public should know about those costs. The 18th Judicial District Attorney George Brauchler said the public defenders have an obligation to the taxpayers to open their financial books. Brauchler led the prosecution of Holmes and convicted  him, but lost a bid for the death penalty.

“They don’t want the public to know how much they spend,” Brauchler said. “Taxpayers should say, ‘We’ll give you money when you tell us how you spend it.’”

In response to the influx of criticism, Wilson performed his own open records requests on the Colorado District Attorneys’ Council. He told CU News Corps that on a statewide level, the DA’s yearly budget is almost twice that of the public defender’s, or nearly $157 million.

Ernie Lewis, executive director of the National Association for Public Defense, said it’s dangerous to compare the budgets, because the two offices’ jurisdictions are funded differently.

Both sides are funded by taxpayer dollars: the 18th Judicial District’s budget is supported by its counties, the OSPD is fed by the state. One aims to bring justice to victims and criminals. The other defends Constitutional law and people who couldn’t otherwise afford an attorney. Both are vital to the functioning of our justice system.

“The competition over budgets between prosecutors and public defenders is a relatively old story,” Lewis said. “It happens in most places because the pie is finite, and when you’re in an adversarial relationship, both parties are going to want some sort of advantage.”

Some prosecutors are starting to feel outmanned by the OSPD, which has been reported to often have more lawyers on a case than their opposition. Tom Raynes, executive director of the Colorado District Attorneys’ Council, said some counties can’t keep up.

“For example,” Raynes said, “In Pueblo, there are 22 prosecutors, but there are 26 public defenders. They get pounded down there.”

Wilson holds fast to his claim that he cannot — according to the American Bar Association — ethically divulge any details on the Aurora theater killer case, but his state-approved budget, along with performance reviews, is available on his office’s website.

“We are more transparent than almost any state agency, and we are more transparent than almost any prosecutor’s office in the state,” Wilson said.

Squaring Off

Prosecutors claim they reveal every penny they spent on the Aurora theater shooter case, from how much they pay their experts to what it cost to stock the courtroom with tissues. Unlike the OSPD, the DA’s office is subject to the Colorado Open Records Act (CORA).

The public defender’s office does not have to comply because it operates under the Judiciary System — the entire branch can turn away CORA requests. Colorado is one of 13 states that exempts offices within the judicial branch from open records requests.

“We’re really not trying to hide anything. This isn’t me playing a shell game,” Wilson said.

Still, prosecutors contend that taxpayers who fund the OSPD should know how every dime of their money is spent.

“This is a fundamental responsibility of state government. And since no one can question them, they are their own gatekeeper,” Brauchler said.

Some state legislators agree with Brauchler and are working on a bill for the 2016 session that would make the State Judiciary subject to CORA. But Wilson says even if such a bill passes, he would not — could not — give up the numbers. It’s going to take a lawsuit, he said.

“I’ve been waiting for you guys to sue me for three years,” Wilson said. “Sue me. Let’s find out. I believe we will win.”

Wilson cited Colorado Rules of Professional Conduct,, which he said preserves client confidentiality, and, along with Colorado law, shelters his office from having to release details about how it allocates much of its budget. If Wilson released the numbers, he said, he would face personal penalties, the worst fathomable being disbarred.

Lisa Teesch-Maguire, one of Brauchler’s deputy prosecutors, called Wilson’s use of Rule 1.6 a ruse.

“They just hide behind the veil of, ‘it’s attorney-work product,’ and I don’t think it is,” Teesch-Maguire said.

The high-profile mass murder trial is what drew attention to the OSPD’s spending, but it’s one piece of the office’s overall budget. Nationally, Colorado falls in the middle of overall spending for public defenders, with funding of $16 per resident per capita. Oregon spends nearly $26 and Mississippi spends just over $5. Colorado’s public defenders have an annually approved budget paid by the state, compared to Louisiana, which is funded by fees associated with traffic tickets.

But when it comes to the death penalty, the Colorado OSPD opens its wallet a little wider, said Bob Grant, the former district attorney who prosecuted Gary Lee Davis. Davis was the last person executed in Colorado.

“I think they spend money on capital cases to say they spend money,” Grant said. “The public defenders want to make it as expensive as possible.”

Grant said it makes sense that the public defender puts greater fiscal emphasis on capital cases — the OSPD opposes capital punishment. But, he said, “Many people would question the basis for that magnitude of that expenditure. Outside of capital cases, I don’t have any reason to believe they’re frivolous in their spending.”

Grant said district attorneys and public defenders cannot be compared side-by-side. The two entities take on different types of cases, and their budgets can’t be compared without first considering case and workload of both offices.

Public Defender Costs

Here’s what the Office of the State Public Defender has released about its budget in response to Open Records requests from several news agencies, including CU News Corps.

• A figure that amounts to half of the office’s total attorney salaries for the entire state in the last 13 years went toward defending Holmes. Of the $4.34 million paid in salaries since 2002, more than $2 million was for salaries of the five attorneys who defended the mass murderer. Wilson pointed out that those attorneys would have been paid regardless of having the theater shooter case to work on.
• The office has spent at least $6.3 million on 10 death penalty cases over the past 13 years, according to documents obtained by CU News Corps from the Office of the State Public Defender.
• $1.99 million of that $6.3 million represents “aggregate expenses”.
• The OSPD’s budget for next year will be $86 million. Last year they returned $500,000 of unused funds. Wilson supplied CU News Corps with the entire budget for all prosecutors in the state, which is nearly $157 million.
• CU News Corps specifically requested numbers regarding the millions of dollars spent on Holmes’ trial, but the public defender’s office would only supply salaries of the five attorneys defended the Aurora theater shooter. Wilson also confirmed that the OSPD did not pay to house the defendant’s parents during the trial, who came from California to support their son.

The 12 information requests denied to CU News Corps included:

• Money spent on expert witnesses, some of whom never testified.
• Money spent on travel to conduct interviews with the gunman’s family and friends in and out-of-state.
• Cost of housing character witnesses and their families during the trial.
• Cost to house the five attorneys during the four-month trial.

18th Judicial District Expenses

Here’s what CU News Corps has learned about money spent by by District Attorney George Brauchler’s office to build its case and prosecute the killer. They reported spending a total of $1.84 million for the three-year investigation and trial. The office received a federal grant that brought their out-of-pocket expenses down to $183,024. This number is subject to rise after the first of the year.

$543,131 in total mandated costs funded by state funds:

• $498,852 for expert witnesses
• $44,279 in other costs associated with the trial (water bottles, tissues, subpoena services, testifying witness travel)

$1,114,498.92 in federal grant money spent:

• $871,733 for Deputy District Attorney Lisa Teesch-McGuire + 3 victims advocates and 1 victim compensation specialist
• $201,718 for victim travel
• $28,846 for additional supplies
• $12,202 “professional services”

$183,024 spent from the Office of the District Attorney’s operating budget:

• $75,123 for the help of retired district attorney Dan Zook
• $66,433 for Teesch-Maguire’s salary between January 20 – October 10, 2015
• $20,000 in 640 hours of employee overtime
• $12,809 for investigator travel
• $8,658 for additional supplies

More Costs of the Holmes Case

Additional costs we gathered from other public entities added up to nearly $2.5 million.

The Arapahoe County Sheriff’s Office

$1.625 million for housing, feeding and transporting the defendant from his arrest in July 2012 until Aug. 28, 2015, the day after sentencing. The Sheriff’s Office received a grant of $403,218.77 to help with the costs.

• Nearly $95,000 went toward housing, at a cost of $83 a day. The mass murderer was in a single-person cell.
• $35,917 that went toward transportation, but Arapahoe County spokesperson Julie Brooks did not go into detail.
• $506,372 in employee overtime.

Colorado Bureau of Investigation (CBI)

$17,265 for investigating James Eagan Holmes from July 20, 2012 until Aug. 27, 2015 (13 months). That includes ballistics, fingerprints, computer/IT information, and any other costs related to the case.

Colorado State Patrol Department of Public Safety

$997 for a plane ride the killer took to the Mental Health Institute at Pueblo in late July 2014 for in-person sanity evaluations.

Colorado Department of Human Services

At least $499,079 for 700 hours of service for two court-appointed psychiatric experts hired to examine Holmes. The final figure is unknown. The amount above does not include the on-stand testimonies of state-appointed psychiatrists Dr. Jeffrey Metzner and Dr. William Reid during the guilt-or-innocence and sentencing phases of the trial. It’s normal for expert witnesses to be paid $300-600 per hour. At one point during the trial, Reid made a statement under oath  said on-stand that implied he’d been paid, “half a million dollars”.

Aurora Police Department

$315,200 in employee overtime.

Looking Ahead

After years of facing criticism over their accused secrecy, Wilson’s office is starting to open up.  At a Smart Act hearing this week, he announced his attorneys’ salaries with lawmakers.

“He’s sharing so that we can have some idea of what taxpayers are paying for,” said Rep. Yeulin Willett (R-Grand Junction).

Willett was so impressed with Wilson’s willingness to divulge that the state representative decided to withdraw his sponsorship of a bill seeking to force the public defender to reveal more.

“If their overall budget is fair, I have to respect their office,” Willette said. “The death penalty is the ultimate punishment, and it’s easy to criticize how much they spend on those cases.”

If Wilson stops providing this kind of information openly, however, Willett said he will reinstate his support for the bill.

Other legislators remain unsatisfied with the lack of accessibility to information kept within Wilson’s office. State Representatives Polly Lawrence (R- District 39) and Rhonda Fields (D-District 42) have plans to push a freedom of information bill that would make the entire Colorado Judicial Branch subject to open records requests, to include the state public defender. A similar bill aimed specifically at Wilson’s office failed last year.

The OSPD is wading into two new high-profile cases as the new year approaches: that of accused Planned Parenthood shooter Robert Dear, and that of a 16-year-old girl arrested in relation to threats made to her high school in Highlands Ranch. Although Wilson has professed fiscal transparency to the public and to legislators, his office isn’t leaving the spotlight with the year 2015. He can likely anticipate ongoing demands for more disclosure as his office continues representing clients people love to hate.