Attorney General Weiser opposes The Colorado Independent in court records fight

AG ducked the First Amendment issue at the heart of the case, says Editor Greene

Phil Weiser, left, was sworn in as Colorado's attorney general last week. (Photo by Evan Semón for The Colorado Independent)

In his first week on the job, Colorado Attorney General Phil Weiser officially opposed The Colorado Independent’s petition before the U.S. Supreme Court to compel the Colorado Supreme Court to justify its decision to deny public access to specific records in a death penalty case.

The Independent is asking the Supreme Court to return the case to the lower court, arguing that Colorado’s justices failed to apply First Amendment requirements in ruling that the documents should remain sealed. Instead, the state’s justices issued a blanket ruling that the public does not have an “unfettered” right to view judicial records.

In a brief filed Thursday, Weiser wrote that The Independent’s petition “is not about the public’s general access to court records.”

“Instead, this case is about a small subset of sealed documents that the Colorado state courts have repeatedly concluded have no bearing” on claims by death-row prisoner Sir Mario Owens that prosecutors mishandled his case, Weiser wrote.

Susan Greene, editor of The Independent, said she is disappointed by what she called “egregious” mischaracterization in the attorney general’s brief of the news site’s position and of an earlier Colorado Supreme Court ruling. Greene said that ruling — that the public does not have an automatic right to see court records — is the crux of The Independent’s First Amendment challenge, and that Weiser’s brief ignores that issue.

The Independent argues it has a constitutional right to see court documents that may show prosecutors withheld evidence that could have helped Owens, who was convicted of two murders in Arapahoe County in 2005, defend himself at trial and during his appeal of his death sentence.

Ahead of their meeting in February, the U.S. Supreme Court justices asked the Colorado attorney general’s office for its opinion in the case. That request came down in November, when Republican Cynthia Coffman — who while in office opposed The Independent’s position in this case — still held the job. Weiser, a Democrat, was sworn in last Tuesday, and on Thursday his office filed a brief in opposition to The Independent’s petition, essentially picking up where Coffman left off. His name was signed at the bottom.

The battle for court documents stems from a 1,500-page order issued in late 2017 by District Court Judge Christopher Munch. Though Munch upheld Owens’s 2008 murder conviction and death sentence, he also ruled that prosecutors withheld evidence that might have helped Owens but that was not significant enough, in Munch’s opinion, to sway a jury. State law says prosecutorial misconduct — which includes withholding exculpatory evidence — disqualifies a case from death-penalty eligibility.

Attorneys for Owens had tried to have 18th Judicial District Attorney George Brauchler’s office disqualified from the case. The judge refused. The Independent sought access to four sealed court documents that addressed the request, but Munch and later 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 scope of the news site’s record request.

The state Supreme Court ruling has 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.

Attorney General Weiser’s brief to the U.S. Supreme Court justices contains three main points:

  • The Independent is advancing an argument — in favor of the existence of a presumptive constitutional right of access to judicial records — before the Supreme Court of the United States that it did not present to the Colorado Supreme Court.
  • The Independent “fails to identify any discernible conflict” between the Colorado Supreme Court’s ruling and rulings by other courts in related cases, and that The Independent is seeking “only to correct what it claims is an erroneous decision” by the Colorado Supreme Court.
  • This case is a “poor vehicle for deciding the First Amendment issue” The Independent has raised, in part because of factual disagreements between The Independent and the 18th Judicial District over the contents of the sealed records. Weiser’s office argues The Independent received most of the records it wanted, and that those still sealed have nothing to do with prosecutorial misconduct; the Colorado Supreme Court reviewed the documents in question and agreed.

The Independent has until Jan. 24 to file an optional response.

On Monday, the law firm Ballard Spahr, which is representing The Independent pro bono in the case, replied to the attorney general’s brief.

The law firm wrote that the Independent’s petition “does not ask this Court to order the Colorado courts to unseal any of these records, as the Respondent mistakenly asserts. Rather, it asks the Court to reverse the Colorado Supreme Court’s blanket holding that the First Amendment access right does not apply to these records — or any other court records — regardless of their content. According to the Colorado Supreme Court, no judicial findings whatsoever were necessary under the Constitution, to justify sealing the records at the time.”

Steve Zansberg, an attorney with Ballard Spahr, added that “Unless the Colorado Supreme Court’s ruling is corrected, the people in this state will be denied a fundamental liberty interest forevermore.”

Greene said the attorney general misstates the state court’s ruling and The Independent’s position.

“Apparently, the A.G. believes that justices of the U.S. Supreme Court will be persuaded by how it characterizes the ruling and ignore the actual words of the Colorado Supreme Court’s opinion, which read that the ‘presumptive right of access to judicial proceedings’ does not extend to the records on file in courts of law,” she said.

She added, “Phil Weiser is defending the indefensible. This is a disappointing start for a man who purports to champion government transparency.”

In October, 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’s petition. They included The Washington Post, The New York Times, the Associated Press, NPR and NBC News.

Owens, 32, has been on death row since 2008. He was tried, convicted, and sentenced to death 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.

CORRECTION: An earlier version of this story stated The Independent had asked the Supreme Court to unseal the records.

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