Greene: DA George Brauchler is playing hide-and-seek with public records

This just in from the gulag department…

Since we reported that George Brauchler has been trying to hide court records chronicling his office’s misconduct in prosecuting a death penalty case, the 18th Judicial District Attorney has taken his secrecy efforts further. Ridiculously further.

Now Brauchler is trying to hide court documents about The Colorado Independent’s efforts to make the original court documents public. He’s asked a judge to seal his office’s and The Independent’s court pleadings in the public records battle and to prevent our lawyers from sharing those documents with us, their client, or with you, the people of the state he purports to serve.

Not only is Brauchler’s request “literally unprecedented,” as lawyers for The Independent argued in a pleading filed Wednesday, “it is also an affront to the traditional notions of due process and fundamental fairness that are the foundation of America’s justice system.”

As we’ve long reported, the pattern in the 18th Judicial District of suppressing key evidence raises serious questions about its ethical fitness to prosecute crimes, especially death penalty cases.

But Brauchler’s efforts to shroud that misconduct in secrecy bring up new concerns about his fitness to become Attorney General, the office he’s seeking after quitting the governor’s race when Republican AG Cynthia Coffman announced her candidacy last month. Brauchler, also a Republican, is trying to manipulate the court system to suppress documents that shed critical light on him, his record as DA, and the colleagues he dispatched – for millions of tax dollars – to secure a death sentence at all costs. That may not bode well for a candidate seeking election as the state’s top law enforcement official.

At issue is the capital case against Sir Mario Owens, 33, who was tried, convicted, and sentenced to death in 2008 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.

Under Brauchler’s predecessor, former DA Carol Chambers, the office withheld a long list of key evidence in Owens’ case, the case against his co-defendant, Robert Ray, and other, unrelated capital cases. When Brauchler was elected DA, he kept the two lawyers who led the Owens prosecution (and hadn’t disclosed evidence to Owens’ lawyers, as required) working on the case. The evidence-withholding continued well into his tenure. Records show his office kept secret witness protection files that should have been disclosed to Owens’ defense counsel.

Owens team tried to have Brauchler’s office removed from the case, citing rules of criminal conduct that say withholding evidence that could have swayed a jury against a guilty verdict amounts to prosecutorial misconduct. Under Colorado’s death penalty law, it’s one of several reasons to disqualify a case for death penalty eligibility. When a life is on the line, the argument goes, rules of procedure matter more than ever.

District Judge Christopher Munch – who, controversially, was appointed to hear the case after the state booted out the original judge – chastised Brauchler’s office for its missteps, but ruled in September that they weren’t grounds to overturn Owens’ death sentence.

Munch’s order, which is under appeal, prodded The Colorado Independent to seek specific court records detailing DAs’ misconduct. Judicial records typically are open to the public. But, remarkably, there is no publicly available docket identifying Owens’ motion to oust Braucher’s office from the case for its failure to disclose or suppressing exculpatory evidence. Nor is there mention of the court order denying Owens’ request. They’ve been put under seal, prohibiting public review.

So we took legal action to obtain them.

Representing The Independent’s nonprofit newsroom, First Amendment attorneys Steve Zansberg and Gregory Szewczyk of Ballard Spahr LLP filed a motion with the state Supreme Court on Oct. 27. The court ruled Nov. 6 to transfer jurisdiction to the District Court in Arapahoe County, where Owens was tried and where his appeal was heard.

State law allows courts to seal records only when “necessary to protect a governmental interest of the highest order,” when “any sealing order is narrowly tailored,” and when “no reasonably available alternatives can adequately protect the compelling state interest.” In The Independent’s unsealing motion (read full motion here), Zansberg and Szewczyk argued that those requirements cannot be satisfied in a case that was publicly tried almost a decade ago and in which there is a lengthy court order that finds a pattern of withholding evidence that would have helped Owens’ defense. The U.S. Constitution, the Colorado Constitution and common law, they asserted, “protect the right of the people to receive information about the criminal justice system through the news media, and the right of the news media to gather and report that information.”

The response from Brauchler’s office is murky, at best.

In an email to Zansberg in November, Brauchler’s deputy, Rich Orman, likened allegations of prosecutorial misconduct to salacious and unproven allegations in a private divorce case. “The District Attorney believes that the court in this case has, and can continue to, limit access to portions of its file that may become the vehicle for an improper purpose, namely for the court file to improperly serve as a reservoir of libelous statements for press consumption,” Orman wrote.

He failed to acknowledge that Judge Munch had ruled the misconduct allegations were founded.

Brauchler’s office also has failed, at least publicly, to make a legal argument against The Independent’s document requests. Instead, it filed a “Sealed/Suppressed People’s Statement of Interest” last week that, go figure, is prohibited from public view. With it, the office also filed a public motion asking our lawyers to respond to arguments in the Statement of Interest, to which they don’t have access, in secret. Let me make this plain. Brauchler’s office filed a response with the court that they asked be kept secret, even from The Independent’s attorneys. Our lawyers are to respond to whatever argument Brauchler’s office is making without being able to see what those arguments are. They’re also asking our lawyers not to share their blind-response with us, nor with anyone else, including, presumably, the voting public.

To what they deemed the “outlandish” and “breathtaking” request by Brauchler’s office, our lawyers responded by writing that here “In America” litigants have the right to see the arguments and evidence made in opposition to their requests and to confer with their lawyers about them.

I hope their legal primer will come in handy for a man seeking to become, as he notes on his campaign site, “the state’s top attorney, in charge of the state’s largest law firm, and charged with the great responsibility of upholding and defending our laws.”

“It is a powerful position that must not fall into” the wrong hands, he wrote.

I met with Brauchler about a year ago about the duties of a prosecutor. What set him apart from Chambers, his predecessor, and from then-Denver DA Mitch Morrissey, he told me, were “accountability and transparency.”

“I don’t hold anything back. If people want information from me, I’m all into giving it to them,” he said during our interview in his office’s conference room.

But apparently, in Brauchler-world, transparency doesn’t come so easily when it pertains to that office’s misconduct. He has created a shell game of documents, layer upon layer of secrecy that precludes an honest assessment of his record in a case that matters most because a man’s life is at stake.

Brauchler is hiding in those layers like a boy hides under his mother’s skirt. He’s apparently counting on it being too time consuming, too legally complicated, or too intimidating to make the effort to peel back the layers and reveal what’s underneath.

In this case – at least about these specific misconduct documents we’re seeking – that would be a gross miscalculation.

Photo by James Lee via Flickr: Creative Commons.