Lack of judicial transparency in Colorado is intolerable but there is hope

A Denver Post reporter’s terrific series on how state courts have suppressed thousands of lawsuits and criminal cases from public view has prodded the judicial branch into pledging belated reform. But don’t celebrate yet. Final victory for judicial transparency in Colorado is a long way off.

And fixing one of the obstacles may require the intervention of the highest court in the land.

In his reports, The Post’s David Migoya revealed that “someone could be arrested, charged, convicted and sentenced for a crime in Colorado without anyone outside of law enforcement ever knowing who, how, why or whether the process was fair.” That’s intolerable on many levels, which is perhaps why the state court system has bestirred itself and announced that suppression orders and their legal justification may soon be made public. We shall see.

But suppression orders aren’t the only way courts prevent citizens from monitoring their activities. Another threat — thanks to a deplorable ruling this year by the Colorado Supreme Court — is the nearly unlimited authority of judges to bar public access to court documents without so much as offering a legal justification, even in a capital murder case of intense public interest that was sullied by prosecutorial misconduct.

The state high court not only rejected a request by The Colorado Independent, an online publication, to unseal documents in the death-penalty case of Sir Mario Owens, it unanimously dismissed the idea that the public has a constitutional right to inspect any judicial records.

Colorado is now a regressive outlier in terms of access to judicial documents, which is why the Independent’s latest move is so important. On Friday, its attorneys filed a petition with the U.S. Supreme Court asking it to consider the issue.

Seeking Supreme Court review is always a long shot, but this case contains many features that may make it attractive. The high court has clearly stated that “the right to attend criminal trials is implicit in the guarantees of the First Amendment,” but it has never ruled outright on access to court documents. Meanwhile, no fewer than 11 federal Circuit Courts of Appeals and a variety of state courts have recognized a qualified constitutional right for the public to view court files, as the Independent’s petition points out.

Either those courts are wrong or the Colorado Supreme Court is out of line. The highest court in the land should clear the air.

Then there is the nature of the underlying case itself. In pursuing Owens, who was sentenced to death 10 years ago, prosecutors in the 18th Judicial District under DA Carol Chambers cut corners. Among tantalizing facts they failed to properly disclose was that her office promised and later gave a car to a witness.

A lower court ultimately ruled these lapses had not jeopardized Owens’ right to a fair trial — which is certainly plausible — but defense attorneys naturally sought to disqualify the DA’s office from any further role in the case. (By this time Chambers had been replaced by George Brauchler, the current GOP attorney general candidate.) And this is where the Independent enters the fray. It wants to see the motions for and against that request, a transcript to a closed hearing on the matter and the judge’s order rejecting the defense motion. All have been sealed without explanation.

If there is confidential information in the documents, the court could have said so. But for all we know, the records were sealed to protect the DA’s office from embarrassment and pointed questions. It is simply staggering that our state Supreme Court believes the public has no right to know the truth. As the Independent’s petition points out, public access to the judicial system “discourages perjury, misconduct, and bias that can thrive in secrecy” while promoting the “perception of fairness.”

Nor is access to criminal trials alone sufficient in an age when “less than five percent of all felony cases” even go to trial. “Even entirely public proceedings cannot easily be followed or fully comprehended by the press and public without access to the pleadings, motion papers and documentary evidence that are the focus of those proceedings,” the petition rightly observes.

Yet instead of affirming a qualified right to inspect judicial records, Colorado Supreme Court Justice Melissa Hart delivered a sloppy and dismissive opinion that failed even to frame the issue correctly. She said the Independent sought “unfettered access” and “a constitutional right of access to any and all records in cases involving a matter of public concern,” neither of which is true.

But true or not, the damage is done. Judges in Colorado have the green light to seal a vast array of records, and then hide their reasons for doing so, without fear of impinging on a foundational right.

Fortunately, there are two possible avenues of relief. The first is the legislature, which should enshrine a presumptive right of public access to “all judicial proceedings, related documents and exhibits” except in certain well-defined situations. That’s the American Bar Association’s recommendation.

The second avenue is the U.S. Supreme Court. Let’s hope it takes the bait.

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Lack of judicial transparency in Colorado is intolerable but there is hope