Indy takes fight over Brauchler’s office misconduct files to state Supreme Court

The Colorado Independent has turned to the state Supreme Court for help in our fight to unseal records about prosecutorial misconduct in a death penalty case.

Earlier this week, we filed an emergency petition in response to a lower court’s ruling that continues hiding from public view court records about wrongdoing in the 18th Judicial District Attorney’s office. Retired Senior District Court Judge Christopher Munch gave no legal reasoning for his decision to keep sealing those documents, and we’re asking the Supreme Court to require him to do so or to lift the seal.

For The Independent, the petition is a Hail Mary in our quest for details about misconduct by prosecutors under District Attorney George Brauchler’s and his predecessor’s watch in the case against Sir Mario Owens, a convicted murderer who is one of three men on Colorado’s death row. The DA’s office has been found by judges to have cut ethical corners in prosecuting Owens, and we’re seeking the details, as well as records on file in the court in which prosecutors justified their actions. Based on those justifications, the judge to decide not to disqualify that office from proceeding with the case.

For the public, Coloradans’ ability to hold prosecutors and judges to account pivots on the success of The Independent’s petition.

“How can the public know that the criminal justice system is working like it should without access to court records, especially when those records involve something as consequential as a death penalty conviction?” says Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. “Access to court records is crucial for the public to hold the system accountable, and there must be compelling, well-articulated reasons for records to be sealed.”

The records battle stems from the 2005 killings of Vivian Wolfe and her fiancé, Javad Marshall-Fields, son of Rhonda Fields, now a state senator from Aurora. The couple was gunned down just when Marshall-Fields was scheduled to testify against a suspect in a different murder case for which Owens ultimately was convicted.

Despite a strict requirement that prosecutors turn over evidence that could help a criminal defendant, the office—then under the watch of Brauchler’s predecessor, Carol Chambers—failed to disclose facts to Owens’ defense lawyers. Among them was evidence showing that, in exchange for a key witness’ testimony, the office gave her a car, paid for other personal expenses, supplied her with sizable gift cards for groceries each month, and helped pull strings with authorities in other states so she could get her driver’s license.

Based on that testimony and other evidence, Owens was tried, convicted and sentenced to death.

Brauchler, who replaced Chambers in 2013 and is now running for state Attorney General, kept the same two prosecutors working against Owens’ appeal and they continued withholding evidence. Court records show they withheld witness protection files that should have been disclosed to Owens’ defense counsel.

Owens’ lawyers 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 capital punishment law, it’s one of several reasons to disqualify a case from death penalty eligibility. When a life is on the line, the argument goes, rules of procedure matter more than ever.

The District Court denied Owens’ request to oust Brauchler’s office from the case and to appoint a special prosecutor. In a court order in September, Judge Munch acknowledged DAs’ misconduct by failing on at least 22 occasions to disclose or actively suppressing evidence that would have helped Owens. Still, Munch ruled that the cumulative impact of that misconduct wasn’t enough to have infringed on Owens’ right to a fair trial or to warrant lifting his death sentence.

Munch’s order prompted The Independent to ask to see the court documents relating to prosecutorial misconduct. DAs blocked that effort , saying the records would “improperly serve as a reservoir of libelous statements for press consumption,” and would embarrass Brauchler and harm his reputation. They asked the judge not only to deny our request to unseal the court records, but also to add yet another layer of secrecy by sealing their explanation for why he should do so.

Judge Munch handed down two orders earlier this month that, without citing any legal standards or analysis, granted the DA’s motion to seal the DA’s new court filings and denied access to nearly all of the prosecutorial misconduct records, including the DA’s responses and court orders. Though Munch’s order recognizes The Independent’s “legitimate interest in investigating the underlying facts and claims of alleged government misconduct,” it doesn’t say how or why he came to the conclusion that our “legitimate interest” is less weighty than what he refers to as Brauchler’s “countervailing considerations.” Again, those “countervailing considerations” are, too, shrouded in secrecy.

In response, The Independent submitted our emergency motion Monday asking the Supreme Court to force Judge Munch to either legally justify his decision or unseal the court documents. The petition begins with the following quote from the 1983 public records case, Cole v. Colorado: “A free self-governing people needs full information concerning the activities of its government not only to shape its views of policy and to vote intelligently in elections, but also to compel the state, the agent of the people, to act responsibly and account for its actions.”

We’re asking the Supreme Court to “clarify for trial judges throughout Colorado” that the public has a presumed right of access to documents on file in Colorado criminal cases, including documents related to prosecutorial misconduct. We’re also asking justices to rule that the court records may not be sealed unless the government proves that secrecy is somehow necessary to protect an interest “of the highest order” and that it there are no “less restrictive” alternatives to do so.

The flap over the misconduct files mirrors similar struggles journalists and other members of the public have had inspecting court documents. There is a patchwork of varying policies and practices in – and even within – judicial districts throughout Colorado. And, all too often, access hinges on the personality and politics of the prosecutors and judges involved. The potential for embarrassment or political fallout shouldn’t affect which court documents are accessible, watchdogs say.

“The district court judge’s ruling demonstrates the need for a uniform, statewide standard for the sealing of criminal court files, one that is based on the public’s First Amendment right to access those files,” says Roberts of the Freedom of Information Coalition.

The group – of which The Independent is a member – has been urging the state judicial branch to adopt such a standard. As Roberts has reported, Colorado Court of Appeals Judge Jerry Jones aims to appoint a subcommittee to explore the idea.

Photo courtesy of Colorado’s judicial branch, the Colorado Department of Corrections, and DU’s Sturm College of Law.