Colorado Supreme Court rules prosecutorial misconduct docs can remain secret in death row case

Colorado Supreme Court. Photo by John Herrick

The Colorado Supreme Court today denied a petition from The Colorado Independent to unseal records about prosecutorial misconduct in the capital case against Sir Mario Owens, a death row inmate who was convicted of murdering a state lawmaker’s son.

The unanimous ruling may make it easier for Colorado courts to decide to block public access to court documents. That includes, evidently, records related to cases in which the death penalty is at issue and cases in which prosecutors are accused of wrongdoing, said Steve Zansberg, attorney for the Independent.

“These types of documents are the only way the press and public can gauge whether prosecutors and judges – officials who have enormous power over people’s lives – are serving ethically and fairly. By allowing these records to be shrouded in secrecy, this ruling will further erode confidence in Colorado’s criminal justice system and the public’s trust the judicial branch of our state government,” said Independent Editor Susan Greene.

The Independent is considering appealing today’s ruling to the U.S. Supreme Court, which, as the state Supreme Court wrote, has never ruled on the matter of whether access to “all criminal justice records is a constitutionally guaranteed right belonging to the public at large.”

The statewide nonprofit news site filed an emergency petition in January to the state Supreme Court after District Court Judge Christopher Munch issued a 1,500-page order issued nine months ago in which Munch upheld Owens’ conviction and death sentence despite having found a pattern of misconduct by state prosecutors whom the judge found withheld evidence that might have helped Owens.

This suppression of evidence happened under the watch of Carol Chambers, the former district attorney of the 18th Judicial District, and later under her successor, District Attorney George Brauchler, the Republican currently running for state attorney general.

Vikki Migoya, spokeswoman for Brauchler’s office, said, “We feel the ruling speaks for itself and have nothing to add.”

Owens’ legal team filed a motion seeking to disqualify Brauchler’s office from the case on grounds that the office had withheld evidence that could have helped Owens’s defense. That motion asked the court to appoint a special prosecutor from another district, but it was denied and sealed along with the denial and all documentation related it.

“While presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” Justice Melissa Hart wrote on behalf of the state Supreme Court, “neither the United States Supreme Court nor this court has ever held that records filed with a court are treated the same way. We decline to conclude here that such unfettered access to criminal justice records is guaranteed by either the First Amendment or … the Colorado Constitution.”

The ruling today has statewide impact and “means the public will never come to understand why a motion to disqualify a prosecutor in a capital murder case was denied. That’s, I think, deeply disconcerting,” said Steve Zansberg, attorney for the Independent.

“I’m not saying (Owens’s) motion should have been granted. but we’ll never know why it was denied.”

Said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, “Access to court records is important so that the public can evaluate how the criminal justice system is working and hold officials accountable. So it’s disappointing that relevant facts about the prosecution of a capital murder case will remain under seal.”

Owens, 32, was 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 death-row inmates in Colorado. All three were prosecuted by the office Brauchler now leads, and all three are African-American – a population that comprises less than 5 percent of Colorado’s overall population. Vast racial and socioeconomic disparities in who gets sentenced to death in the state have been cited by civil libertarians and even Gov. John Hickenlooper, a one-time death penalty supporter, as reasons to reconsider capital punishment in the state.

Brauchler repeatedly has said his office is color-blind and ethical in seeking death sentences. Since The Independent became a party in The People v. Sir Mario Owens, the 18th Judicial District Court and the state Supreme Court have blocked access not just to documents related prosecutorial misconduct allegations, but also to Owens’ entire 13-year case.

Photo of Colorado Supreme Court by John Herrick.

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