The Colorado Independent is fighting to unseal secret records in a death penalty case

Update: George Brauchler’s office has asked for another two-week extension to submit its legal objections to The Independent’s motion to unseal documents about prosecutorial misconduct. We’ll keep following the story as it unfolds.

Colorado’s judicial system is shrouding in secrecy documents about prosecutorial misconduct in the case against Sir Mario Owens, a death row inmate convicted of murdering a state lawmaker’s son.

The Colorado Independent is fighting in court to unseal records showing that the 18th Judicial District Attorney’s office suppressed evidence under the leadership of former DA Carol Chambers and her successor, George Brauchler.

Brauchler’s office is opposing the unsealing of the court papers that discussed its misconduct.

“The People object to Colorado Independent’s current request,” Brauchler’s staff wrote in a Nov. 17 court filing. The office has until Thursday to file a legal response outlining its objections in Arapahoe County District Court.

In an email to The Independent’s counsel, Steven Zansberg, Brauchler’s office likened allegations of prosecutorial misconduct to salacious and unproven allegations in a private divorce case. “The District Attorney believes that the court in this case has, and can continue to, limit access to portions of its file that may become the vehicle for an improper purpose, namely for the court file to improperly serve as a reservoir of libelous statements for press consumption,” Brauchler’s deputy, Rich Orman, wrote.

Orman failed to acknowledge that a judge has ruled that the misconduct allegations are founded.

District Court Judge Christopher Munch issued a 1,500-page order in September that upheld Owens’ death sentence, but found a pattern of prosecutorial misconduct, including the withholding of evidence that might have helped Owens’ case.

“A man’s life is on the line here,” says The Independent editor Susan Greene. “The public has a right to know in detail how, as a judge has ruled, these public officials mishandled a death penalty prosecution. This is exactly the kind of case that warrants the most public scrutiny.”

Owens, 32, was tried, convicted, and sentenced to death in 2008 for the 2005 killings of Vivian Wolfe and her fiancé, Javad Marshall-Fields – son of Rhonda Fields, now a state senator from Aurora. Marshall-Fields was scheduled to testify against a suspect in a different murder case for which Owens ultimately was convicted.

Owens is one of three inmates on Colorado’s death row. The two others are Robert Ray, his co-defendant in Wolfe’s and Marshall-Fields’ killings, and convicted Chuck E. Cheese killer Nathan Dunlap, whose execution Gov. John Hickenlooper has reprieved temporarily, citing concerns over how death sentences are meted out in Colorado.

In a state whose population is 4 percent African-American, all three death row inmates are black. And all three were prosecuted by the same District Attorney’s office in Arapahoe County south of Denver, long Colorado’s death penalty epicenter.

Under Chambers’ control, that office was reported by The Denver Post to have handed out bonuses to prosecutors who hit target goals for convictions – a practice Owens’ lawyers have claimed amounted to an improper bounty system. The office suppressed key evidence in other cases, including those in which it was seeking the death penalty. When Brauchler was elected DA, he kept the two lawyers who led the Owens prosecution on the case and, as a court ruling shows, didn’t disclose evidence to Owens’ lawyers, as required.  The rules of criminal conduct say withholding evidence that could have swayed a jury against a guilty verdict amounts to prosecutorial misconduct. Under Colorado’s death penalty law, it’s one of several reasons to disqualify a case for death penalty eligibility.

Much of the evidence-withholding  by the DA’s office took place under Chambers’ watch. But, according to public records, even well into his tenure, Brauchler’s office kept secret witness protection files, which judge Munch and the judge presiding over the case before him found should have been disclosed to Owens’ defense counsel.

There is no physical evidence, no confession, and no eyewitness who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave funds, plea bargains, or both in return for their cooperation against Owens.

Court records show that one of those witnesses was promised and later given a DA’s office car. Some were given gift cards for local businesses. One received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying for the prosecution.

If he didn’t cooperate, court records show, one of the main prosecution witnesses was threatened with being charged for the murders Owens was accused of and with receiving two life sentences. Another witness received a suspension of his jail sentence on the condition that he help prosecutors in Owens’ case. People working for the prosecution would appear at informant witnesses’ court hearings and ask for lesser sentences on the condition that they testify against Owens, records indicate. Records also show that informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences so long as they cooperated.

Owens’ appeal argued that by failing to disclose these deals to Owens’ lawyers before trial, the prosecution rendered them unable to cast doubt on those witnesses’ testimonies and put their credibility in dispute.  As a result, Owens’ appeals counsel argued, Owens was denied a fair trial.

Owens’ appeals process went haywire last year when the Colorado Judicial system fired District Judge Gerald Rafferty after he had presided over more than two years of appeals hearings and worked on his written appeals decision for about 11 months. Before he was able to finish his ruling, Rafferty, who had made several comments about government misconduct in the Owens’ case, was fired over what judicial officials have said was a contract dispute.

In September, Rafferty’s replacement, District Judge Munch, issued a lengthy order denying Owens’ appeal, yet the judge found several examples of misconduct by prosecutors for having failed to disclose or actively suppressed evidence that would have been favorable to Owens’ defense. Prosecutors defended their handling of the case, saying there was no deliberate attempt to quash or hide evidence.

Although Munch chastised the DA’s office for its missteps, he ruled that they weren’t grounds to overturn Owens’ death sentence.

Defense lawyers and death penalty abolitionists nationwide say it’s rare, and possibly unprecedented, for a death sentence to be upheld when a judge has found prosecutors cut professional and ethical corners.

Munch’s order prodded The Independent to seek specific court records detailing DAs misconduct. Judicial records typically are open to the public. Remarkably there is no publicly available docket identifying Owens’ motion to oust Braucher’s office from the case for its failure to disclose or suppressing exculpatory evidence. Nor is there mention of the court order denying Owens’ request. They’ve been put under seal, prohibiting public review.

So The Independent took legal action to obtain them.

Representing The Independent pro-bono, First Amendment attorneys Steve Zansberg and Gregory Szewczyk of Ballard Spahr LLP filed a motion with the state Supreme Court on Oct. 27. The court ruled Nov. 6 to transfer jurisdiction to the District Court in Arapahoe County, where Owens was tried and where his appeal was heard.

State law allows courts to seal records only when “necessary to protect a governmental interest of the highest order,” when “any sealing order is narrowly tailored,” and when “no reasonably available alternatives can adequately protect the compelling state interest.” In The Independent’s unsealing motion (read full motion here), Zansberg and Szewczyk argue that those requirements cannot be satisfied in a case that was publicly tried almost a decade ago and in which there is lengthy court order that finds a pattern of withholding evidence that would have helped Owens’ defense. The U.S. Constitution, the Colorado Constitution and common law, they assert, “protect the right of the people to receive information about the criminal justice system through the news media, and the right of the news media to gather and report that information.”

Access to public records, they argue, is fundamental to a democracy and necessary to ensure accountability and promote confidence in the criminal justice system.

Legal scholars and civil rights advocates argue that public records access in a death penalty case is especially important, ensuring some measure of public scrutiny before the state executes someone in the people’s name.

The Independent was one of several media outlets Zansberg previously represented in fighting for access to other documents in Owens’ case. The outlets won that legal battle in 2014.

Brauchler, a Republican, recently dropped his bid for governor, and is now running for state Attorney General. That office has a special section that helps local prosecutors seek the death penalty. Earlier this summer, Jack Roth, one of the AG’s top lawyers on capital cases, lost his job after having made public comments that overstepped his authority to seek the death penalty death in a Crowley County murder prosecution.

Brauchler started eyeing statewide elected office after prosecuting Aurora Theater shooter James Holmes, whom the jury spared from death. He remains staunchly pro-capital punishment and is Colorado’s most vocal advocate for keeping the death penalty.

Photo by Spiro Bolos for Creative Commons on Flickr. Photo of Sir Mario Owens courtesy of the Colorado Department of Corrections