DENVER — Last spring, between the time the Democratic-controlled Legislature passed civil unions and gun control laws and Democratic Gov. John Hickenlooper granted a temporary reprieve to convicted Chuck E. Cheese’s shooter Nathan Dunlap, a bill to abolish the death penalty died in a House committee.
The measure was quashed largely at the urging of Hickenlooper’s administration which, in a year of relatively progressive lawmaking, called for a longer “statewide discussion” about capital punishment.
The Department of Corrections soon made it clear it didn’t want to participate in that discussion by refusing to reveal the protocol it would follow to carry out executions. In May, the American Civil Liberties Union of Colorado sued the state for information about how the state had planned to execute Dunlap. Just over two months later, the ACLU won its case.
The Department “has failed to demonstrate that disclosure of a properly redacted Execution Protocol would be contrary to the public interest,” Judge R. Michael Mullins ruled. “Particularly in light of Governor Hickenlooper’s recent reprieve, which calls for a public conversation about the death penalty in Colorado, disclosure of these records would further the public interest.”
Now a larger hurdle stands in the way of public conversation about capital punishment.
Court records have been sealed in the cases of Sir Mario Owens and Robert Ray, the two men still held on death row in Colorado.
Owens and Ray have been sentenced to death for the killings of Vivian Wolfe and her fiancé Javad Marshall-Fields, who was expected to testify against Owens and Raw in another murder investigation. The Owens and Ray cases – and Dunlap’s, too – were prosecuted in the 18th Judicial District under former District Attorney Carol Chambers. Chambers’ office, which pursued the death penalty far more often than any other DA’s office in Colorado, was criticized for failing to disclose key evidence, including information about police surveillance, alternate suspects, plea offers and other dealings with witnesses, that could have been vital to the defense.
As with all death penalty cases, Owens and Ray underwent dozens of court proceedings – including motions hearings and trials — that were open to the public. Six years ago, citing “witness protection issues,” District Court Judge Gerald Rafferty ordered most of the transcripts from those proceedings sealed from public view.
Years after his conviction, Owens’ lawyers have argued that the seals should be lifted because the witness protection measures are no longer needed.
Death penalty opponents and freedom of information advocates are interested in the transcripts for several reasons. Among them are questions arising from the fact that Owens and Ray (and Dunlap, as well) happen to be black in a predominantly white state and judicial district. With so much at stake, watchdogs want access to transcripts to explore any possibility that Colorado’s two death row inmates may be innocent. Questions also linger about accusations of prosecutorial misconduct on the part of Chambers, who was term-limited out of office earlier this year.
In June, post-conviction lawyers asked the state Supreme Court to unseal the case files. On Sept. 3, the court granted a petition to review the case, but then withdrew the order two days later, citing a clerical error.
Owens’ lawyers last week filed a motion for reconsideration that was denied by the Supreme Court in a matter of hours.
“Mr. Owens has fundamental rights to disseminate information about his case, including information which documents and exposes serious misconduct committed by government actors and public officials, and to have a properly informed public serve a vital role as a check on governmental abuses,” the motion reads. “The public and the press have fundamental rights to access this information – and to be accurately and fully informed.”
Attached to the motion is a letter signed by Owens’ mother, Monica Owens, death penalty opponents, the Colorado Criminal Defense Bar, the Colorado Innocence Project, the NAACP, the Colorado Press Association, the Freedom of Information Coalition, the Colorado Independent and others. The letter asks state Supreme Court justices to open the case files.
“Allowing these cases to remain cloaked in secrecy and hidden from public review and scrutiny will undermine public confidence in both the government and the judicial process,” the letter reads. “That such sealing and secrecy has been imposed in capital cases where there are substantial claims of serious government misconduct will further undermine societal trust in its institutions.”
Lawyers representing Owens and Ray are prohibited from commenting on the sealed records.
Others in Colorado’s legal defense community say it’s unheard of – even in higher profile cases such as the Oklahoma City and World Trade Center bombings – for case files to be sealed.
“I’m not sure Judge Rafferty thought through the ramifications of this,” said veteran Denver defense lawyer Dan Recht. “In a death penalty case, it’s important that there be oversight. When transcripts are sealed, it becomes virtually impossible to unearth evidence of wrongfully convicted people, and that’s scary. It reeks of a type of secrecy usually identified with totalitarian regimes from the Soviet era.”
Still in question is where the state’s executive branch stands on the sealed case files. Six months after the bill to repeal the death penalty died in committee, it’s unclear what kind of statewide conversation the Hickenlooper administration has in mind when reams of information about Colorado’s only two death row inmates – and the officials who prosecuted them – remain hidden from public scrutiny.[ Image by Jeffrey Beall via Flickr ]