The Colorado Independent is asking the state Supreme Court to re-hear its request to unseal records about prosecutorial misconduct in the capital case against Sir Mario Owens.
The court denied The Independent’s unsealing request on June 11, and the petition filed Wednesday seeks a reconsideration of that decision.
The basis for the opinion written by Justice Melissa Hart was that “unfettered access” to criminal justice records is isn’t guaranteed by either the First Amendment or Colorado’s Constitution.
But The Independent wants the court to reconsider because it fundamentally misunderstood the scope of the records it sought.
“We did not in fact ask for ‘unfettered access’ to ‘any and all’ court records of public concern, as the opinion asserts,” said Editor Susan Greene. “Instead, we asked for four records in particular, including a transcript of a closed-door hearing in a capital murder case. And if a judge is going to deny that request, we expect a reasoned, fact-based explanation.”
Wednesday’s petition, filed for The Independent by First Amendment attorney Steve Zansberg of the Ballard Spahr law firm, reads: “In rejecting what it perceived to be (The Independent’s) argument — that the First Amendment guarantees ‘absolute’ public access to all court records, without exception — the Court held that the First Amendment does not apply at all to the question [of] whether court records should be released to the public or may be maintained under seal.”
The June 11 decision, if upheld, could make it easier for Colorado courts to block public access to court documents in the future. Wednesday’s petition was filed in part because, as Zansberg argued, “the impact of the Court’s decision extends far beyond the particular litigation in which it arose, and the decision dramatically departs from the rest of the country in its application of a First Amendment principle that is critical for government transparency.”
Because of Justice Hart’s written opinion, Colorado is now the only state in the nation to declare there is no constitutional right whatsoever – not even a starting presumption of access – to judicial records in criminal cases. As Zansberg noted in Wednesday’s petition, every federal appeals court to decide the issue has recognized a First Amendment-based right to inspect judicial records that document how and why judges exercise their authority.
In January, The Independent filed an emergency request to the state Supreme Court after 18th District Court Judge Christopher Munch issued a 1,500-page order upholding Owens’s conviction for the 2005 killing of Javad Marshall-Fields – son of Rhonda Fields, now a state senator from Aurora – and his fiancée, Vivian Wolfe. The order also upheld Owens’s death sentence.
Munch made that ruling despite having found a pattern of misconduct by prosecutors in the 18th Judicial District. Under former District Attorney Carol Chambers, he found, prosecutors in the office withheld evidence at the 2008 trial that might have helped Owens. He also found that the pattern of evidence withholding continued after George Brauchler took office in 2013 while Owens was appealing. Still, Munch concluded that if prosecutors had turned over that evidence, it likely wouldn’t have prevented Owens’ jury from finding him guilty or sentencing him to death.
Owens’s lawyers had sought to disqualify Brauchler’s office from the case and have a new special prosecutor from outside the district assigned to it instead. Their motion was denied and remains sealed, along with a transcript of a hearing, Munch’s order, and all documentation related to it.
The Independent has argued that the public has a First Amendment right to review those court records as a way to assess Munch’s performance on the bench and Brauchler’s performance as district attorney.
Brauchler, a Republican, is running without a primary opponent in the race for state attorney general.