Editor’s Note: Since this story was published, the Attorney General’s office has asked for an extension in responding to the U.S. Supreme Court. A cert decision now won’t be made until winter of 2019.
The Colorado Independent has cleared an initial hurdle in its bid to persuade the U.S. Supreme Court to consider its First Amendment case.
The court on Thursday issued a request for a response from Colorado Attorney General Cynthia Coffman to The Independent’s petition for the high court to hear the case. The legal battle is over sealed court records about 18th Judicial District Attorney George Brauchler’s prosecution of Sir Mario Owens, one of three men on Colorado’s death row.
Supreme Court justices were originally set to conference about the petition on Nov. 9, at which point they might have denied the petition outright (statistically, that would have been the most likely outcome), grant it and put the case on the court’s docket, or request a response from the Colorado attorney general’s office.
That the court took that third route eight days ahead of the scheduled conference indicates at least some interest from the justices, though it far from guarantees they’ll ever hear the case, said Steve Zansberg, a Colorado attorney with the firm Ballard Spahr who is representing The Independent pro bono.
Coffman, a Republican who’ll exit office in January, has until Dec. 3 to file the requested response. The planned Nov. 9 conference on this matter will be postponed until at least Dec. 3.
Coffman’s office waived an opportunity to file a response last month to The Independent’s petition, but when the case was before the Colorado Supreme Court Coffman’s office argued, in a sweeping dismissal of The Independent‘s position, that “there is no constitutional right of access” to the sealed court documents the newsroom seeks.
In its case, The Independent, a nonprofit newsroom based in Denver, is seeking to protect the public’s First Amendment right to court records.
In late 2017, District Court Judge Christopher Munch issued a 1,500-page order upholding a murder conviction against Owens as well as his death sentence — but the judge also found a pattern of misconduct by prosecutors who, he said, withheld evidence that might have helped Owens.
Munch wrote in his order that had the withheld evidence been produced at trial, it wouldn’t have led to a not-guilty verdict, and so it did not warrant lifting Owens’ death sentence.
Following that finding of prosecutorial misconduct, 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 the request. The Colorado Supreme Court unanimously ruled against The Independent, saying that “unfettered access” to criminal justice records isn’t guaranteed by either the First Amendment or Colorado’s Constitution. The Independent sought a rehearing — which was denied — on the grounds that the court misread the request.
The state Supreme Court ruling made Colorado the only state in the nation without a presumed First Amendment access to court documents. It sparked the current, pending appeal at the U.S. Supreme Court.
Last week, nearly 100 First Amendment scholars and news outlets or organizations around the country signed on to “friend of the court” briefs in support of The Independent. They included The Washington Post, The New York Times, the Associated Press, NPR and NBC News.
Brauchler, a Republican, is facing Democrat Phil Weiser in a race to replace Coffman as attorney general.