Courts’ suppression of documents goes to SCOTUS

By Teresa L. Benns
DENVER — The online non-profit news organization The Colorado Independent has appealed a request to review murder case documents withheld by a district court judge, a decision unanimously upheld by the Colorado Supreme Court, to the U.S. Supreme Court for determination.
Saguache County is no stranger to the continued fight to open court and other public records. Open records laws were challenged in 2011 by voting rights activist Marilyn Marks during the 2010 election controversy when County Clerk and Recorder Melinda Myers and assistant clerk Rene Hazard fought the release of ballots and other election materials. The Center Post-Dispatch also won an open meetings lawsuit against the county in 2010.    
First Amendment attorney Steve Zansberg, who also has advised reporters in Saguache County open records issues, will represent the Independent pro bono with the help of the Ballard Spahr law firm. The attorneys  filed a 112-page petition with the U.S. Supreme Court asking them to review the Colorado Supreme Court ruling.
The case taken to SCOTUS by The Colorado Independent involves the murder of a state lawmaker’s son in Aurora by Sir Mario Owens, now on death row. The district judge in the case ruled that the District Attorney’s office, headed by Attorney General candidate George Brauchler, had mishandled the case, but declined to disqualify Brauchler’s office in the matter.
The Colorado Independent initially requested four court documents. Both attorney records and reports in the paper on the fight to obtain the records contend that Brauchler repeatedly foiled attempts to gain access to the documents.
“Because of the unanimous June ruling, Colorado is now the only state in which there is no constitutional right to judicial records in criminal cases — not even a baseline presumption of public access. The ruling may make it easier for Colorado courts to block public access to court documents,” The Colorado Independent reported last month.
As the Colorado Freedom of Information Coalition details in its Colorado Transparency news report for October, the case is not an isolated one. According to articles featured recently in the The Denver Post and other news outlets, Colorado courts have suppressed over 6,700 cases, many of them criminal and involving violent crimes. Most of the suppressed cases have occurred in the 18th Judicial District, comprised of Elbert, Douglas, Arapahoe and Lincoln Counties overseen by District Attorney George Brauchler.
The Denver Post discovered that when a suppression order is issued, the order itself and supporting documents used to justify are both suppressed. This means the Post writes, that “someone could be arrested, charged, convicted and sent to prison in Colorado without anyone seeing why, how or where, and whether the process was fair.”
Following the exposure of the court practice a number of cases were opened, but 66 felony cases remain sealed, and these involve homicides, sexual offenses and other crimes. The records remained are not open to the public even though defendants were already convicted and sentenced, with some serving lengthy prison terms.  
The paper also uncovered the suppression of “dozens” of lawsuits filed against attorneys for various degrees and forms of misconduct, some of them involving malpractice cases, and the outcomes of these suits have also been kept secret. Other professionals (doctors, architects) must report malpractice settlements and verdicts to state regulators.

Courts and prosecutors defend the suppression of records on the grounds that some witnesses and those peripherally involved in the crimes would be in danger if details were made public. They also maintain that further investigation of criminal activity would be hindered. This could be true even after prosecution, some maintain. But the Colorado Supreme Court’s decision in the case simply goes too far, others argue.
The State’s Judicial Branch is considering a new set of criteria, the Post also reported, but the timeline for consideration is unknown.  Nor is it known if the criteria will be retroactive, opening up rulings on the remaining 3,000 cases still suppressed.
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