The United States Supreme Court has denied The Colorado Independent’s request for review of a Colorado Supreme Court decision to allow records in a death penalty case to remain under seal, a decision that may make it easier for judges in the state to block public access to court documents.
The decision, announced online early Tuesday morning, means that a unanimous June ruling against The Independent by the Colorado court stands, and certain 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 — will remain sealed.
“We knew going in that this would be a long shot,” said Susan Greene, editor of The Independent. “But our news team and board are proud to have stood up and challenged the Colorado Judicial Branch’s secrecy habit and questioned what it seems to interpret as its unbridled authority to shroud from public view whichever records it chooses, regardless of the reason.”
Votes on whether to grant petitions are not made public, so it’s not known if the Supreme Court was split or united when it elected not to take up The Independent’s case. Its decision, which was posted with no discussion or statement, does not necessarily mean it agrees with the Colorado Supreme Court.
But odds the justices would ever take up the case were always long; about 8,000 petitions are filed each year asking the U.S. Supreme Court to grant writ of certiorari — in other words, to review a lower court’s decision — and only about 70 are granted, according to Adam Feldman, a Supreme Court scholar and analyst who founded the blog Empirical SCOTUS.
Feldman said The Independent had stronger odds than many of those 8,000 petitions, for a couple reasons: First, the petition was supported by four amici (“friend of the court”) briefs from nearly 60 of the nation’s biggest and most influential news organizations, a couple dozen of its top First Amendment scholars and a group of Colorado newsrooms. The average petition has zero or one supporting brief, he said.
Second, Feldman said, the court has of late proven more open to granting petitions in First Amendment cases because they apply to broad swaths of the public but have relatively little effect on government politics, which the justices often prefer to avoid.
“We’re obviously disappointed that the Supreme Court did not choose to review the Colorado Supreme Court’s ruling,” said Steve Zansberg, an attorney with Ballard Spahr who represented The Independent pro bono and who also serves as the president of the Colorado Freedom of Information Coalition. “It leaves our state as the only jurisdiction in the nation that has categorically rejected any First Amendment right of the people to inspect judicial records. Accordingly, we are working with members of the General Assembly who have expressed interest in correcting this state of affairs through legislation — that would codify the constitutional standards, as other states have done — this term.”
Added Greene, “Let’s hope that state lawmakers show more interest in the concept of a truly open judiciary than the Judicial Branch itself.”
At issue in The Independent’s petition was the Colorado Supreme Court’s ruling that documents in the capital case of Owens should remain sealed. 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.
Owens is one of three death-row inmates in Colorado, all of whom were prosecuted in the state’s 18th Judicial District and the office that now belongs to District Attorney George Brauchler.
In late 2017, District Court Judge Christopher Munch issued a 1,500-page order in which he upheld the murder conviction and death sentence against Owens, but in which he also pointed to a pattern of misconduct by state prosecutors. Still, Munch said in the order, the evidence the prosecutors withheld wouldn’t have been enough to lead to a non-guilty verdict at trial, and so did not warrant lifting Owens’s death sentence.
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. Brauchler fought in court to keep the court documents about his office’s misconduct sealed.
Following the June ruling by the Colorado Supreme Court, The Independent asked the U.S. 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 Independent noted, the state Supreme Court issued a blanket ruling that the public does not have an “unfettered” right to view judicial records.
The ruling the U.S. Supreme Court has declined to review may make it easier for Colorado courts to decide to block public access to court documents by setting a precedent. 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 Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, of Tuesday’s decision, “This is not unexpected, but it would have been nice to get clarity about a First Amendment right of access to records. Many courts around the country have ruled that there is such a right but in Colorado, that’s not the case. Colorado has become an outlier in that respect. Lacking that clarity, we need to find other ways to find some kind of standard for the sealing and suppression of court records, because right now we don’t fully understand why they’re kept from the public in Colorado.”
This story will be updated.