no charges
Police & courts — February 21
February 21, 2003
Judge: No criminal libel charges 
Boulder Chief District Judge Roxanne Bailin ruled Thursday that no criminal libel
charges would be filed against the Daily Camera, other media or individuals in
connection with a story about a California woman's theory of the 1996 JonBenet
Ramsey death. 

Fleet and Priscilla White, former friends of the slain girl's parents, insisted the judge
order the prosecution of criminal libel charges after a special prosecutor's report filed
earlier this month declined to pursue the case. 

Bob Harward, special prosecutor with the El Paso County District Attorney's Office,
which was appointed to investigate the couple's allegations, summarized in a 13-page
report that he would be unable to pursue a case because of constitutional problems
with the criminal libel statute and a lack of foundation to support a prosecution. 

Priscilla White represented herself and husband at the hearing but did not present any
arguments. She declined comment after the hearing. 

Bailin sided with Harward on Thursday, saying no charges would be filed. 
"At this point this case is completed. The court won't be taking any further action." 
The statute of limitations to file criminal libel charges expires Tuesday, three years
after the Camera published its initial story.

Ms Krebs' allegations were made public for the first time in a front-page article in the February 25, 2000 edition of the Daily Camera. The article headlined "DA pursues new Ramsey lead" was published under the by-line of Barrie Hartman, who at the time, was editor of the paper's editorial page. Ms Krebs was not identified by name in the article, but her allegations of sexual abuse were recounted at length. The article stated that she came forward with the aid of her "therapist of ten years", Mary Bienkowski, who joined her in retaining a private attorney in Boulder, Walter Leon "Lee" Hill.
In addition to the substance of Ms Krebs' claims the Daily Camera article reported various persons' opinions about her credibility. Alex Hunter, the District Attorney in Boulder, purportedly opined that he found her to be "very believable" that her information could provide a major breakthrough in the Ramsey homicide investigation, and that her statements merited further state and potentially federal investigation. Ms Krebs' attorney Mr Hill, was quoted as saying, "She is amongst the most credible witnesses I have ever interviewed." The article said Boulder police detectives weren't so sure about the value of her information.
Mr White Jr, was mentioned by name in the Daily Camera article. The reference to Mr White began, "The woman said she knows the Ramseys through the Fleet White family. She said the godfather to her mother is Fleet White Sr, 86, of CA. Fleet White Jr of Boulder and John Ramsey were close friends until the death of Jon Benet." While the article does not directly state that Ms Krebs claimed Mr White Jr was among the persons involved in sexual misconduct, Mr and Mrs White contend that such an allegation, in the overall context of the article, is strongly implied. If so, the same implication would presumably extend to Mr White Sr and to John Ramsey, Jon Benet's father.
The events leading up to the publication of the Daily Camera article, and the persons responsible, may be reconstructed from several sources. First, as mentioned, some of the circumstances of Mr Hartman's learning of the woman through Mr Hill, and of her possible value as a witness in the Ramsey case, are explained in the article itself, as well as in the "editor's note" accompanying the article. Mr Hill later made a number of documented statements about the same events. Det Spraggs recently contacted Mr Hartman at my request to ask about Mr Hartman's recollections in detail. He also contacted Ms Krebs in CA by telephone. Finally, the actions at the management level of the Daily Camera, were recounted in an editorial in the May 7, 2000, Daily Camera, authored by the paper's then editor and publisher, Colleen Conant.
Based on these sources, it appears that Ms Krebs saw Mr Hill on television roughly in early February of 2000. She called him from CA to assist her in reporting her information to the Boulder police. Mr Hill volunteered to represent her. Acting as her attorney, he contacted Mr Hartman. Mr Hill persuaded Mr Hartman of Ms Krebs' value as a potential witness in the Ramsey investigation. Mr Hartman recalls that he paid for Mr Hill's airplane ticket to CA so that Mr Hill could gain further information from Ms Krebs. Mr Hartman also contacted Mr Hunter, the DA, in order to acquaint him with the situation and encourage his interest.
Mr Hartman now recalls his role at that specific point in time solely as that of an intermediary, as a common acquaintance of Mr Hill and Mr Hunter, to assure that Ms Krebs would be favorably introduced into the Ramsey investigation. Mr Hartman denies being involved in the capacity of a newspaper reporter, despite his employment with the Daily Camera, and remembers telling Mr Hill he would not publish Ms Krebs' story.
On February 16, 2000, following Mr Hill's return from CA, a meeting was held for Mr Hunter to be informed in greater detail of Ms Krebs' allegations. The meeting occurred at Mr Hartman's home in Boulder. In attendance were Mr Hartman, Mr, Hill, Stephen Singular, author of a book on the Ramsey homicide, Mr Hunter, and Linda Wickman, a DA investigator. Ms Krebs, herself, was not at the meeting. Ms Wickman's report on the meeting shows that Mr Hill and Mr Singular both furnished information to Mr Hunter.
From the moment the Daily Camera article appeared, Ms Krebs' allegations were further disseminated by the print media. The Daily Camera itself published follow-up articles, which included repetition of the gist of the first article. The Longmont Daily Times-Call newspaper, beginning the next day, ran articles repeating the material from the Daily Camera. At least one Denver paper, The Rocky Mountain News, did the same. The National Examiner supermarket tabloid repeated much of the same material in an article in the April 4, 2000, edition.
On the following Sunday, February 20, 2000, after Ms Krebs traveled to Boulder from CA, she and Mr Hill met with Mr Hartman. Mr Hartman recalls speaking to her at length about her history of sexual abuse, and finding her presentation to be persuasive. Ms Krebs recalls the interview as well, adding that she spoke to Mr Hartman with an expectation of confidentiality. She says both Mr Hill and Mr Hartman told her that her statements would not be made public. She states that her sole purpose in coming to CO was to report information to the police, not to the media.
Mr Hartman recalls offering to arrange a similar interview between Ms Krebs and Mr Hunter. Mr Hunter declined, preferring that she make a formal statement directly to the police. Boulder Police Department detectives interviewed her in detail on Tuesday February 22, 2000. The interview was recorded and later transcribed. Mr Hunter monitored the interview, but did not conduct it. Ms Krebs recalls Mr Hunter briefly coming into the interview room at one point. She says it was the first and only time she saw him.
Mr Hartman recalls speaking to Boulder Police Chief Mark Beckner a day or two later. Mr Hartman was frustrated when he discovered that the police had reservations about the value of Ms Krebs' information, and he describes the conversation as becoming "testy". Concerned that Ms Krebs' allegations might not be given the attention Mr Hartman believed was called for, Mr Hartman decided that her story should be made public. He concedes his goal in publicizing her allegations was to goad police into conducting a more thorough investigation of Ms Krebs' allegations than he thought they would otherwise undertake.
Mr Hartman drafted a proposed article for publication in the Daily Camera. According to the later editorial by Ms Conant, the decision on whether, and how much, to publish was a difficult issue that was carefully debated by Daily Camera's attorneys, and that his draft was returned in a substantially rewritten form to avoid future libel action.
Mr Hartman recalls that, before the article was actually published, he never spoke directly to Ms Krebs to ask if she agreed that her statements should be made public. Ms Krebs concurs on that point, saying she was not consulted and did not agree. Mr Hartman did speak to her attorney, Mr Hill, about publicizing her statements.
Mr Hartman and Mr Hill disagree as to whether the earlier agreement about confidentiality was mutually modified. Mr Hartman says Mr Hill eagerly agreed to publicize his client's story. Mr Hartman is also aware, however, that Mr Hill has been depicted in a published article as making no such agreement. The article, a biography about Mr Hill, was titled " The Accidental Jurist", and was published in the Denver Westword newspaper on March 30, 2000. The article states that Mr Hill, Mr Singular, and Mr Hunter were all against the idea of publicizing the woman's story. Mr Hartman says he saw the Westword article and later confronted Mr Hill specifically about Mr Hill's supposed opposition to Ms Krebs's story being made public. Mr Hartman says Mr Hill claimed to have been misquoted in the Westword article, and that Mr Hill apologized for the error.
Mr Hill made other statements, however, in which his position on the issue of confidentiality is unmistakably clear. Within days of the Daily Camera article, Mr Hill was a phone-in guest on the Peter Boyles Morning Show, a radio talk show on the Denver station KHOW. Mr and Mrs white furnished me with a verbatim transcript of the program. According to their transcript, Mr Hill stated, "This case was never taken to the press. It was never intended to hit the headlines, and the person who caused it to hit the headlines did so over my objection, my respectful objections". Mr Hill identified that person as the "managing editor" of the Daily Camera, Mr Hartman.
On a later occasion, Mr Hill spoke in even greater detail about the confidentiality issue and the events immediately preceding publication of the Daily Camera article. That later occasion was on May 10, 2000, when Mr Hill appeared with his client, Ms Krebs, for a second interview with Boulder Police detectives. The interview was recorded and later transcribed verbatim by the police. The transcript was among materials recently released to Mr White Jr who furnished it to me. Mr Hill's statements in that transcript include his assertion that he met with Mr Hartman on the morning before the Daily Camera article was published, which would be the morning of Thursday February 24, 2000. Mr Hill stated "I went to Hartman and got his assurances of his confidentiality, and then, when I found out he was going to go with an article, I asked him not to." In the same transcript Mr Hill states, "Barrie Hartman was brought in this from the very beginning as a citizen activist who has great inroads. He was brought in to facilitate a connection directly to senior law enforcement officers." Mr Hill further states, "I went to Barrie Hartman as Barrie Hartman, understanding he wasn't a reporter."
While disagreeing that Mr Hill in particular was against publication of the Daily Camera article, Mr Hartman concedes that there was opposition elsewhere. In particular, he recalls the DA, Mr Hunter, was against the idea.
The story from the Daily Camera spread almost immediately to the broadcast media as well. By noon of February 25, 2000 the date of the Daily Camera article, a news program on a Denver television station KCNC News 4, a CBS affiliate, repeated Ms Krebs' allegations from the Daily Camera article, including the name of Mr White Jr. The story was covered by reporter, Raj Chonan. Over the course of the next several days, the same station aired follow-up news segments repeating the allegations. Some of the reports ended with a promotion of a CBS min-series based on Lawrence Schiller's book about the Ramsey homicide, Perfect Murder Perfect Town.
The contents of the Daily Camera article also became a topic of immediate discussion and debate on the Denver radio talk show already mentioned, The Peter Boyles Morning Show. The Whites have provided Det Spraggs with transcripts of some of the broadcasts from late February and early March 2000. Guests joining Mr Boyles' discussions about Ms Krebs' allegations, in addition to Mr Hill, included Jann Scott, who also discussed the allegations on his own television program, Jann Scott Tonight, on Channel 54 in Boulder. Another frequent call-in guest on the Boyles program was Carol McKinley, at the time a FOX News correspondent in Denver.
During Boyles' broadcast of March 6, 2000, Ms McKinley expressed what the Daily Camera had at most implied, namely, that Ms Krebs accused Mr White Jr, of being one of the persons who had sexually abused her. Det Spraggs contacted Ms McKinley, recently to ask her how she learned that accusation. Ms McKinley recalls Ms Krebs' stating the accusation during a personal interview. That interview occurred in Boulder at the office of Ms Krebs's attorney, Mr Hill, not long after the publication of the initial Daily Camera article. Ms McKinley recalls that both Mr Hill and his client were actively seeking further media dissemination of Ms Krebs' claims. Ms McKinley believes that she was not the only media representative contacted by Mr Hill for that purpose.
Ms Krebs recalls the meeting also. She concurs that the meeting was initiated and arranged by Mr Hill. She recalls Mr Hill's instructing her to come to his office and introducing her to Ms McKinley. Ms McKinley's media affiliation notwithstanding, however, Ms Krebs denies she wished, or expressed willingness, to have her remarks publicly disseminated, or even that she understood the interview was being conducted for that purpose. Ms Krebs agrees with Ms McKinley's opinion that Mr Hill's relaying to her an offer of money from a tabloid to print her story. Ms Krebs says she refused the offer because, again, she was interested in providing information only to the police.
The Daily Camera article, and further dissemination of the story by the media, also triggered a long chain of postings on certain Internet websites. The websites, some apparently still in existence, had names such as Cybersleuths, Webbsleuths and Justice Watch. Each website provided a forum for exchange of opinions, theories, and information about the Ramsey case. Contributors, identified only by "hats" i.e. brief names, which may not be true names, presumably included persons outside CO, and possibly outside the United States. The CA woman's allegations were repeated and analyzed, with virtually every imaginable inference stated and explored. Some contributors offered openly accusatory opinions about Mr White, Jr. As a further topic of speculation, Mrs White and the couples' children, who were often identified by name, were also mentioned.
Mr White, Jr, denies ever meeting Nancy Jo Krebs personally, much less sexually molesting her. He denies, in general, that he has ever engaged in any form of sexual abuse of children. He does concede that Ms Krebs was truthful about her mother's family being long time friends with the White family in CA.
Mr and Mrs White Jr, take the position that all persons who disseminated Ms Kreb's allegations and all persons who contributed to such dissemination have committed criminal libel. With respect to the initial Daily Camera article, those persons would include Ms Krebs herself, Ms Bienkowski, her therapist, Mr Hartman, as author of the article, Mr Hill, Mr Singular, and Mr Hunter, including any person on Mr Hunter's DA staff who promoted or assisted Mr Hunter in his actions. The Whites also would include as candidates for prosecution the Daily Camera reporters who authored follow-up articles; local editorial staff and management at the Daily Camera, including Ms Conant The Daily Camera attorneys; and the management of the Daily Camera's parent corporation, Scripps-Howard.
Mr and Mrs White also advocate prosecution of the reporters, editors, publishers and parent corporations of the Longmont Daily Times-Call, the Denver Rocky Mountain News, the National Examiner, and any other periodical covering the story. The Whites also wish to prosecute all involved persons from the broadcast media, specifically Mr Scott, Mr Boyles, Ms McKinley and anchor persons and correspondent Raj Cohan at News 4. The Whites also wish to see prosecution of each person who discussed, and by doing so perforce disseminated, the woman's allegations on the Internet.
To identify responsible persons by name, and to investigate the full extent of each responsible person's involvement, Mr and Mrs White urge that I undertake additional investigation through a state-wide grand jury. A grand jury, they suggest, may confirm many of their suspicions, e.g. that the timing and publication of the CA woman's story - shortly before the airing of the CBS min-series -- was not mere coincidence, but was orchestrated to promote the mini-series. They believe such an investigation would also lead to discovery of the true motives of certain of those who promoted the Daily Camera article. They contend that those motives were not as professed i.e., to assist the Ramsey investigation and to reveal the truth. Rather, they contend, the motives were exactly the opposite, i.e., to hinder the investigation and protect the guilty. The Whites think that a grand jury investigation, if begun, has the potential to expose broad corruption in the Ramsey investigation. The social utility of a grand jury to investigate, in their view, is therefore not limited merely to vindication of their personal dignity as defamed persons. What is ultimately at stake, they believe, is the integrity of the entire Ramsey investigation, and, even beyond that, the integrity of our system of justice.
My decision on what investigation to pursue, and who, if anyone, to charge, is necessarily governed by my role as Special Prosecutor. That role is defined and limited in scope by the Court's order of appointment. The purpose of the order mirrors the underlying concern of the Boulder District Attorney's Office in declaring a conflict of interest and in seeking a special prosecutor. In this case, that conflict arose only because a former DA, Mr Hunter, appeared to be connected to the publication of the Daily Camera article.
Under such circumstances, my power to prosecute is arguably limited to my prosecuting any original libel directly associated with the publication of that article, and only that article. However, because of the apparent casual link between that article and later publications and statements, I will assume, for the sake of argument, that I am empowered to pursue libel charges against each and every person suggested by the Whites. I will further assume - dubiously, but for the sake of argument - that law governing jurisdiction and venue would allow all those persons to be prosecuted in Boulder, CO, USA. I cannot and will not assume, however, that the Court ever intended to give me the task or the power, to conduct a general inquest of the Ramsey investigation.
I therefore decline to pursue criminal libel charges against anyone. What is lacking is not investigation. What is lacking is a legal foundation to support prosecution.
In the 1991 case of People v Ryan, 806 P2nd 935 (Colo. 1991), the Colorado Supreme Court declared that the CO criminal libel statute, CRS 18-13-105, was partially invalid. The statute was found, in some instances, to impermissably restrict freedom of expression as guaranteed by the First Amendment of the US Constitution. The language of the CO libel statute makes it a crime to "publish or disseminate" defamatory statements. If a defendant raises the claim that such statements are true, the prosecution must prove that the statements are false. However the statute does not distinguish between false statements that are honest mistakes and false statements that are lies. Persons making honest mistakes are sometimes constitutionally protected under the First Amendment, while malicious lies are not protected.
In Ryan, the CO Supreme Court noted that the CO libel statute was overbroad because, oversimplifying slightly, it failed to draw any distinction between mistakes and lies, i.e., it did not require prosecutors to prove "actual malice". The court did not undertake to re-word the statute to correct the problem, presumably because doing so would require major revision of the statute. Rather, the court declared that the statute would be invalid in any situation where the First Amendment required a distinction between mistakes and lies. Defining the main area of concern, the court found the libel statute could never be applied to statements "against public officials and public figures on matters of public concern". Declaring the statute partially invalid was considered a necessary, but imperfect, solution to the problem. The remedy worked well to protect those who were supposed to be protected, those making honest mistakes, but in the process it also gave undeserved protection, immunity from criminal prosecution, to persons disseminating known lies about public officials and public figures.
After defining the situation where the criminal libel statute was invalid, the Ryan case went on to define a "purely private" area where the statute could still be applied, i.e., the situation in which one private person defames another private person on a matter of private concern. Between the two extremes - the "public official" and "public figure" area where it would always be valid -- Ryan left the validity of the statute to be determined by future cases. There haven't been any.
The CO criminal libel statute was no different on its face in the year 2000, when the events under consideration here occurred, than it was in 1991, when the Ryan case was decided. To this very day, in fact, Ryan has not prompted the passage of any legislative amendment of the statute. Whether the CO libel statute was valid at the time and under the circumstances of this case is a crucial question. Generally under CO law, a crime does not exist unless defined by valid statute.
The Daily Camera's lawyers contend that the Whites are "public figures" thereby placing them in the category where the statute is invalid, and thereby allowing anyone to defame them with impunity under CO criminal law. The argument that the Whites are public figures is based on their public efforts to force Alex Hunter's removal as DA in the Ramsey investigation. Specifically, the Whites authored an expansive letter to the Daily Camera criticizing Mr Hunter. The letter was published in the paper's January 16, 1998 edition.
Even if the "public figures" argument would fail in a courtroom, it is hardly safe to assume that the statute would survive a constitutional challenge. Arguably none of the disseminated statements in this case could be characterized as going to a "purely private" matter, the area in which the Ryan case found the statute to be valid. Even applying the statute to statements "on a matter of public concern" puts the viability of the statute in question. It is likely that a court would need to do no more than find that the public has a legitimate interest in assuring the proper investigation and prosecution of murders, particularly those in which the effectiveness of the investigation already has been publicly questioned.
The statute is on doubly shaky ground if applied to media defendants. In Ryan, the CO Supreme Court discussed a US Supreme Court civil case involving "media defamation of a private individual on a matter of public concern." The CO court noted that "actual malice" was not required to support an award of compensatory damages in a civil suit, i.e., money, but in the same breath observed that "actual malice" would have to be proved if the sanction was punitive rather than compensatory. Criminal cases, of course, by definition, involve punitive sanctions. Therefore, without directly stating so, the CO court as much as declared the absence of actual malice element in the CO criminal libel statute would render it unconstitutional if the statute were to be applied to the media defendants on a matter of public concern.
Mr and Mrs White's request to pursue criminal charges therefore brings into play a fundamental legal problem. Under the circumstances of this case, it is likely that no such crime even exists in Colorado.
Even if CRS 18-13-105 could pass constitutional muster, the statute would still require proof of public dissemination of untrue statements to make sense of criminal libel. Here, there is no basis to prove that any of the statements disseminated by the media or over the Internet were untrue.
As a matter of definition, whether a statement can be proven "true" or "untrue" requires that the statement be one of fact, such as a scientific or historical fact, subject to verification or refutation. Statements which do not assert fact, but rather on their face express personal judgement, taste, or preference can hardly be proven "untrue" in a criminal courtroom. Obvious examples are a movie critic's condemning a film, an editorial writer's comparing a current president unfavorably to Millard Fillmore, or a gossip columnist suggesting a prominent figure's prominence should be surgically reduced. At best, in a criminal libel case, the issue would be whether the opinion expressed was in fact the speaker's opinion, and not whether others would agree.
Much of the disseminated material about which the Whites complain falls rather clearly into the category of personal opinion. In the first Daily Camera article, for example, comments attributed to Mr Hunter and Mr Hill about Ms Krebs' believability were, on their face, expressions of personal judgment. The same is true of most, if not all, of the Internet commentary. The persons exchanging views on the Internet were obviously not eyewitnesses to the events being discussed, but rather were commenting on their individual weighing and evaluation of second-hand material. Accordingly, even assuming criminal libel statute to be constitutional, I would find no legal basis to charge Mr Hunter, Mr Hill or the Internet contributors with criminal libel for dissemination of their subjective opinions.
Even statements disseminating the information disguised as historical fact, as opposed to opinion, are not necessarily libelous under the CO criminal statute when the disseminator obtains the misinformation from an outside source. If the outside source is concealed and the false information is simply stated as fact, the dissemination may constitute criminal libel under the statute. Libel presumably might also occur if the disseminator vouches for the reliability of the outside source. The situation changes however, if the disseminated statement clearly identifies information as a "claim" or "allegation" of a specific person, and further acknowledges that the claim is unconfirmed and uninvestigated. Under these circumstances, the truth of the disseminated statement logically does not turn on the truth of the allegation, but merely on whether the source exists and whether the source's claim is accurately restated.
In the present case, the various newspaper articles and broadcasts consistently characterized Ms Krebs' claims as unconfirmed and uninvestigated allegations. Misconduct by Mr White Jr, was often at most, implied. While some later dissemination, such as the broadcasting of Ms McKinley's comments and some of the Internet postings, became specific about Mr White's supposed involvement, they still characterized the woman's claims as allegations, the reliability of which was a topic of debate. If criminal libel charges were filed under such circumstances, evidence that Mr White Jr is innocent of any sexual misconduct would probably not even be found relevant or admissible at trial. Again, the issue would be whether Ms Krebs in fact made the allegations, not whether they were true.
Ms Krebs herself does not contest that the allegations attributed to her in the various articles and broadcasts were accurately reported. She says she told Mr Hartman the same thing she told police. Indeed, a comparison of the police reports and the media reports reveals little, if any, discrepancy. Where the reported allegations were in fact the allegations she made, there is no basis to charge criminal libel against any media representative or Internet contributor. It might be added that Ms Krebs, to this day, insists she told the truth about the various events in her life.
Mr and Mrs White contend that Mr Singular, Mr Hill, Ms Bienkowski, Mr Hunter and his staff, as well as editors, publishers, and broadcast executives are all personallly accountable for the result that occurred. Generally, if criminal libel occurs, anyone who acts to "publish or disseminate" the libelous material, or who intentionally causes, promotes or facilitates libel, is accountable for the crime. Conversely, however, if the dissemination of statements is not a crime, then no person commits a crime by causing or promoting dissemination.
A debate over whether anybody in this group of people intentionally caused publication of the Daily Camera article, and its progeny, would be pointless. As discussed in the previous section, it is not provable that the crime of criminal libel occurred because the disseminated article or broadcasts were not untrue. Therefore, whether any of these individuals could be shown to be personally responsible for the articles or broadcasts is a moot point. They cannot be prosecuted for promoting activity that was not a crime.
The Whites wish to focus particular attention on the potential involvement of Mr Hunter. Because the Whites were outspoken critics of Mr Hunter's performance as the DA, they suggest that Mr Hunter acted with the intent to discredit them publicly. Even if Mr Hunter cannot be prosecuted for libel, they urge me to prosecute Mr Hunter on an alternative criminal theory such as retaliation or harassment.
The Daily Camera's article's depiction of Mr Hunter as an active proponent of Ms Krebs' usefulness as a witness arguably created at least the appearance that Mr Hunter supported the article itself. After the article appeared, some of the talk show community speculated that Mr Hunter arranged the article to discredit Mr White Jr. Arguably Mr Hunter contributed to that appearance by his own actions. At the least, he might have been well advised to be more guarded in expressing opinions.
Regardless of whether Mr Hunter's actions were wise or unwise, there is no basis to conclude they were criminal. Under any criminal theory, it would be necessary to prove that Mr Hunter arranged for Ms Krebs' allegations to be communicated to the press. That view is not supported, and indeed is contradicted, by statements from those who were in a position to know what happened, particularly by those of Mr Hartman of the Daily Camera. The critical point is that Mr Hartman presented Ms Krebs to Mr Hunter and not the other way around. Once Mr Hartman discovered Ms Krebs' claims, which he did without any assistance from Mr Hunter, Mr Hartman and the Daily Camera had the right to decide whether to publicize her story. Mr Hunter had no legal power to prevent publication of the article even if he wanted to. Under these circumstances, there is no basis to charge Mr Hunter, or anybody else on his staff, with committing any crime.
A somewhat different analysis applies in addressing whether to pursue criminal libel charges against Ms Krebs herself. On the one hand prosecution is facilitated because she, unlike all others, reported events as her own experience, not as second-hand allegations. On the other hand, there are important considerations which (?unreadable) against her prosecution.
First, proof problems at a trial would be substantial. The prosecution would have the burden of proving beyond a reasonable doubt that unspecified events of a sexual nature, purportedly occurring decades ago somewhere in California, did not occur.
Second the prosecution would have to show that Ms Krebs knew, when she took part in her initial interview with Mr Hartman, that he would publish her claims. Available witness statements as discussed, show exactly the opposite. Mr Hartman, Ms Krebs, and her attorney Mr Hill, all agree that a confidentiality agreement was in effect at that time. If so, the first time it is even arguable that Ms Krebs cooperated in the dissemination of her story was after her claims had already been written about by others.
Third, potential unconstitutionality of the libel statute would place the entire prosecution in jeopardy, as discussed above. For all these reasons, I decline to prosecute for criminal libel.
The Whites suggest that Ms Krebs be charged with false reporting to authorities, a class 3 misdemeanor crime defined by CRS 18-8-111. While avoiding the constitutional issues associated with the criminal libel statute, the misdemeanor crime has its own problems. Prosecution of a misdemeanor is potentially barred by the CO statute of limitations, CRS 16-5-401, which requires commencement of prosecution within 18 months of the commission of a misdemeanor offense. It is possible that prosecution is now barred, although Ms Krebs' return to CA might allow extension of the allowable time.
Even if the misdemeanor charge is not barred by the passage of time, the proof problems are still formidable. In one respect, given Ms Krebs' ongoing assertion of belief in the truth of her assertions, the required proof is even greater. To prove false reporting, the prosecution must show not only that reported statements are false, but that the person reporting them knew they were false. The verdict would likely hinge on a jury's assessment of Ms Krebs' sincerity and general state of mind in February 2000 than on the events from earlier decades. For these reasons, I assess the prospects for successful prosecution to be marginal. I therefore decline to charge Ms Krebs with false reporting to authorities.
In summary, I decline to pursue any criminal charges. Unless the court directs otherwise, I contemplate no further action as Special Prosecutor.
Jeanne Smith 11053
District Attorney
4th Judicial District
Date February 5, 2003 BY Robert Harward

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