Supreme Court orders judge to justify hiding records about misconduct in DA George Brauchler’s office

The state Supreme Court has granted The Colorado Independent’s emergency petition for help in our fight to unseal records about prosecutorial misconduct in a death penalty case.

Today’s ruling marks the latest twist in 18th Judicial District Attorney George Brauchler’s office’s efforts to hide records about its professional and ethical missteps in the capitol case against Sir Mario Owens.

The 33-year-old was found guilty of the 2005 killings of Vivian Wolfe and her fiancé, Javad Marshall-Fields, son of Rhonda Fields, now a state senator from Aurora. He and co-defendant Robert Ray are two of the three prisoners on Colorado’s death row.

Under Brauchler’s and his predecessor Carol Chambers’ watch, a judge has ruled, prosecutors wrongfully withheld evidence that could have helped Owens’ efforts to defend himself at trial and to appeal his conviction and death sentence. Still, retired Senior District Court Judge Christopher Munch ruled that, had the evidence been produced at trial, it wouldn’t have led to a non-guilty verdict, and so prosecutors’ misconduct didn’t warrant lifting Owens’ death sentence.

Late last year, The Independent sought court documents detailing DAs’ misconduct, but those records have been sealed from public view. Brauchler’s chief deputy wrote our lawyer, Steve Zansberg to say his office fears that the documents, if unsealed, would be used “to gratify private spite or – promote public scandal” and “to serve as reservoirs of libelous statements for press consumption.”

Brauchler, a Republican, is running to become state Attorney General after having ended his bid for governor in the fall.

In response to our Oct. 27 motion to unseal records about his office’s misconduct, Brauchler asked retired Judge Munch not only to keep them secret, but also to seal his court filings elaborating on his reasons for wanting them sealed.

Munch issued a ruling in January agreeing to continue sealing the original court records and to put under seal recent court documents filed by Brauchler’s office explaining why they should continue being shrouded from public view. Munch gave no legal reasoning for his decision.

Last week, The Independent filed an emergency petition asking Colorado’s Supreme Court to require Judge Munch to give a legal justification for keeping the documents secret, or to lift the seal all together. Zansberg and colleague Gregory Szewczyk argued that journalists – and all Coloradans’ – have the First Amendment right to inspect court records, and that under state law judges have to make sound legal justifications if denying that right.

The full court ruled in The Independent’s favor today, ordering Judge Munch to show legal cause for his decision by March 12. The Independent will have 30 days to legally respond.

Munch will be represented in court by the office of Colorado Attorney General Cynthia Coffman, a Republican running for governor. Brauchler ended his gubernatorial bid when Coffman jumped in the race.

Today’s order isn’t a final decision in the public records battle, but “is good news for Coloradans who care about accountability in their state’s judicial system,” says Colorado Freedom of Information Coalition Executive Director Jeff Roberts.

“In previous rulings, the Colorado Supreme Court has recognized the public’s right under the First Amendment to access court records and proceedings, a right that can only be overcome by compelling countervailing interests. Access is the only way Coloradans can know whether the system is working properly.”

Journalists and watchdogs seeking criminal court files have faced a hodgepodge of policies and practices among and even within judicial districts throughout Colorado. All too often, access to court records pivots on the personalities and politics of the prosecutors and judge involved. Government transparency proponents note that the potential for political fallout – as may be the case with Brauchler’s record in the Owens case – should have no bearing on whether court documents are open to public scrutiny.

Roberts’ group (of which The Independent is a member) has been encouraging the state judicial branch to adopt a statewide legal standard for sealing criminal court files. The coalition is urging the judicial branch to adopt a procedural rule that Arizona enacted last month setting clear and consistent standards for denying public access to criminal court files.

Photo courtesy of the Colorado Judicial Branch