A Laramie-based judge is allowing a transgender person who is facing trial for allegedly pulling a gun on a man in the streetto subpoena six months’ worth of potential University of Colorado disciplinary records about that man.
That’s according to a Monday order by Albany County District Court Judge Misha Westby, in response to Rihanna Kelver’s request for permission to issue the subpoenas.
Albany County Attorney Kurt Britzius had objected, calling the mission a fishing expedition.
Westby’s Monday order says she “finds that the requested records may contain information material and relevant to the preparation and presentation of the defense.”
The clerk of Albany County District Court is now authorized to issue subpoenas to University of Colorado Boulder’s Office of Student Conduct & Conflict Resolution.
The documents are due Sept. 30.
They’re to be submitted to the court under seal for “in camera” review, meaning review by the judge within her chambers, not open court.
The records can’t go directly to either Kelver or the prosecutor, or sent anywhere else unless Westby orders it, the order says.
After her private review of the documents, the order says, Westby will determine whether any of the records are relevant – and whether they should be disclosed to others in the case.
What Happened
Kelver, a prominent transgender activist in Wyoming, was arrested and jailed briefly last September for pulling a gun on Scott Durham in the street outside the Crowbar in Laramie.
Kelver asserted that it was an act of self-defense.
Durham reportedly yelled gay slurs toward the bar. Kelver alleged in court that Durham had also threatened Kelver.
Video of that night shows Kelver striding across the street, with one hand on the hip-slung satchel that, later events would reveal, held a pistol.
Durham shoved Kelver to the ground, almost in passing, and walked to the other side of the street.
Kelver pulled a gun on Durham. One witness testified in court last month that bystanders stood in the potential line of fire.
Then Kelver put away the gun, gathered scattered belongings and left the crosswalk. The activist was arrested several minutes later, after police were called to the scene.
While Kelver wasn’t the initial aggressor, pulling a gun on someone isn’t necessarily justified after a shove in these circumstances, Westby concluded in an Aug. 31 order.
Westby declined in that order to dismiss the case early on self-defense grounds. But Kelver can still argue self-defense to a jury at trial, where Britzius faces a higher burden of proof to convict.
Kelver faces one count of aggravated assault, which is punishable by up to 10 years in prison, another of possession of a deadly weapon with unlawful intent (up to five years in prison) and police interference (up to one year in jail).
Meanwhile…
Through defense attorney Andrew Holcomb, Kelver asked Westby on Aug. 21 to authorize the subpoena across state lines – for records from August 2022 to through January 2023, relating to any disciplinary investigation, complaint, proceeding, finding, suspension or expulsion involving Durham.
Holcomb also requested other findings and proceedings, plus underpinning and investigative documents used in any disciplinary cases.
Defendants have a Sixth Amendment right to be confronted by their accusers.
Holcomb cited a story by the Laramie Reporter saying anti-fascists pegged Durham as a member of the Patriot Front.
“The disciplinary action arose from identifiable conduct occurring during a known period of enrollment and culminated in Mr. Durham’s departure from the university,” wrote Holcomb.
But it’s unclear whether Durham left on his own or the university compelled him to, the attorney added.
Holcomb used public records laws to obtain a 2023 University of Colorado Boulder Police Report “alluding to Durham’s history of racist, homophobic misconduct,” the motion says.
Holcomb argued the documents he requested bear directly on issues expected to surface at Kelver’s trial, including potential bias or prior conduct relevant to Kelver’s case.
Holcomb asked Westby to vet the documents privately first because certain educational records have a “confidential nature.”
‘Fishing’
Britzius countered in a Sept. 10 response, and asked Westby to deny Kelver’s request.
“The State has a legitimate interest in protecting witnesses from undue harassment and from Defendant prying into a witness’ educational/disciplinary file merely for a fishing expedition,” says the prosecutor’s motion.
None of the information Kelver and Holcomb requested is relevant, argued Britzius.
“Ultimately, Defendant asserts these records would be relevant to show Mr. Durham was the initial aggressor, as well as bias and motive on his part,” wrote Britzius.
Case law requires subpoenaed documents be specific, so that the subpoena doesn’t become a license for “merely a fishing expedition to see what may turn up,” the prosecutor quoted from a 1951 U.S. Supreme Court case.
Durham could not be reached for comment by publication.
Clair McFarland can be reached at clair@cowboystatedaily.com.
