The Colorado Independent on Friday took its fight for open records to the United States Supreme Court.
The Denver-based nonprofit news outlet, represented pro-bono by First Amendment attorney Steve Zansberg and the law firm of Ballard Spahr, filed a 112-page petition asking the high court to review a unanimous June ruling by the Colorado Supreme Court that denied the Independent’s request to unseal court records related to prosecutorial misconduct in the capital case against Colorado death-row inmate Sir Mario Owens.
Public access to judicial records “plays a vital role in assuring that the objectives of a criminal trial are achieved,” the petition states, arguing that the public cannot effectively hold the judicial branch accountable without access to court records and transcripts that shed light on its decision-making.
The petition opens with a quote from former U.S. Supreme Court Justice Harry Blackmun, a Nixon appointee: “Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from public view.”
The case at issue involves the prosecution of Owens — one of three death-row inmates in the state, all of whom are black men — in Colorado’s 18th Judicial District, whose DA’s office is led by Republican District Attorney and current attorney general candidate George Brauchler.
In late 2017, District Court Judge Christopher Munch issued a 1,500-page order in which he upheld Owens’ conviction and death sentence, but found a pattern of misconduct by state prosecutors who, he said, withheld evidence that might have helped Owens. Attorneys for Owens tried to have Brauchler’s office disqualified from the case, but the judge refused.
The Independent sought access specifically to four sealed court documents that addressed this request. In denying The Independent, Justice Melissa Hart wrote that “unfettered access” to criminal justice records isn’t guaranteed by either the First Amendment or Colorado’s Constitution. The Independent sought a rehearing on the grounds that the court misread the request, which was not for “unfettered access,” but rather access to four specific records in one particular case. The state Supreme Court wouldn’t allow it.
Because of the unanimous June ruling, Colorado is now the only state in which there is is no constitutional right to judicial records in criminal cases — not even a baseline presumption of public access. The ruling may make it easier for Colorado courts to block public access to court documents.
The petition argues that this precedent severely limits the media’s ability to cover the criminal justice system and the public’s ability to assess the records of judges and district attorneys when they vote.
“Colorado’s Judicial Branch has gone rogue,” said Susan Greene, the Independent’s editor, after the petition was filed Friday morning.
“Not only is it sealing court records with no legal justification, but it has given Colorado the dangerous distinction of being the only state in the nation without a presumed First Amendment right for the public and news media to keep tabs on our criminal justice system and elected officials. The Colorado Independent’s team of journalists and our board of directors weren’t going to just sit there and let this happen.”