GREENE: What, in all its secrecy, is Colorado’s justice system hiding?

Colorado’s judicial branch has spent a year stonewalling The Independent’s quest for court records, and I’m proud that we have stepped up our fight.

As Alex Burness reported Friday, our lawyers have petitioned the United States Supreme Court to strike down a state court ruling denying The Independent access to records in a death penalty case. That unprecedented decision shrouds Colorado courts in secrecy and makes us the only state without a presumptive First Amendment right for the press and public to scrutinize our justice system.

The ruling must be reversed “because it is so clearly and dangerously wrong,” our lawyers wrote in a 112-page petition that gives this court-record geek more than a few goosebumps.

In the coming weeks, national news organizations and prominent legal scholars will be filing friend-of-the-court briefs in support of our records battle. They will argue that the Colorado Supreme Court ruling in June breached The Independent’s – and, therefore, the public’s – First Amendment right to gather information and have an informed review about the fairness of our state courts. They’ll warn about the dangers of leaving judicial power unchecked. They’ll spell out the chilling effect the ruling will have on journalists. And they’ll say that, without the ability to review court decisions, voters cannot make informed choices about whether to retain or defrock judges.

They will argue the principle that is at stake here, the critical legal underpinnings guaranteed a free people in a free society. That is what this case is about. But I don’t want to lose sight of how and why our fight for these records began, or of the untold number of Coloradans entwined one way or another in a justice system that sometimes loses sight of justice.

The story behind the case

Sir Mario Owens, 33, is one of three inmates on Colorado’s death row. All three are black – which is notable, given that African Americans make up less than 4 percent of the state’s population. All were prosecuted by the 18th Judicial District Attorney’s office now run by George Brauchler.

That office won convictions against Owens for a 2004 murder, and for the 2005 murders of Javad Marshall-Fields, the son of now state Sen. Rhonda Fields, and his, fiancee, Vivian Wolfe. Marshall-Fields was shot to death days before he was scheduled to testify in a case against Robert Ray, who was also facing charges for the 2004 murder. Marshall-Fields’s killing landed both Owens and Ray death sentences.

I don’t know Owens, nor do I know much about his guilt or innocence other than that, at his trial, there was no physical evidence or eyewitness testifying against him.

But I do know that the DA’s office cut corners in his capital case. And having reported on that office under Brauchler’s watch and that of his predecessor, Carol Chambers, I also know the extraordinary lengths to which it will go to rack up a death sentence, even if it means sidestepping the rules.

In September 2017, 18th Judicial District Judge Christopher Munch found that prosecutors engaged in several actions constituting prosecutorial misconduct, including deliberately withholding evidence from Owens’ defense team during his trial and appeal. A prosecutor admitted that under Brauchler’s watch the office maintained a secret file on Owens’s case that it didn’t provide to the defense. That file contained information about thousands of dollars – and even a car – prosecutors gave to informant witnesses; a DA’s office staffer threatening to charge a witness with murder if he didn’t testify against Owens; and special plea deals and lesser sentences prosecutors offered key witnesses in exchange for testifying.

Withholding evidence that could sway a jury against a guilty verdict amounts to prosecutorial misconduct under the rules governing criminal law practice. It’s a reason to disqualify a case for death penalty eligibility under Colorado law. Most judges presiding over capital cases expect extra care in evidence disclosure because the defendants’ lives are on the line.

But not Judge Munch. His finding that prosecutors intentionally suppressed evidence didn’t prompt him to overturn Owens’ death sentence. Rather, he ruled that Owens received a fair trial because the suppressed evidence, in his estimation, likely would not have swayed the jury had it been presented. Munch seems to have concluded that jurors would have put the same stock in the star witnesses even if jurors had known about the money and gift cards those witnesses were receiving from prosecutors and the threats they faced if they didn’t testify.

Munch’s decision stunned legal experts who work on capital cases in Colorado and nationwide. Even those in heavy death-penalty states like Texas, Louisiana and Georgia told me they’ve never heard of a judge upholding a death sentence in a case in which prosecutors deliberately withheld evidence.

Stonewalled

The judge’s ruling raised enough red flags that I asked for four court records – motion papers related to Owens’ lawyers’ request that Brauchler’s office be disqualified from the case, the transcript of the secret hearing about that request, and Munch’s order denying it.

But the district court wouldn’t give me access. Those documents were sealed, administrators told me. Buzz off.

Attorneys Steve Zansberg and Gregory Szewczyk of the law firm Ballard Spahr have been working pro bono trying to unseal the records we sought. They’ve argued that the First Amendment guarantees the right to inspect the judicial documents, as virtually every higher court in the country has found. And they’ve cited case law requiring a balance test in which a judge must show a compelling government interest in sealing records that would outweigh that First Amendment guarantee.

Judge Munch denied our request without meeting that balance test or bothering to say why secrecy should trump our First Amendment access right.

Brauchler, in the meantime, fought hard to keep the documents from coming to light. In an email to Zansberg last year, his deputy Rich Orman compared categorizing the office’s missteps as “prosecutorial misconduct” to making 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.

Brauchler was running for governor at the time and didn’t want his office’s shoddy record on a high-profile capital case scrutinized by the news media. So his office sought layers upon layers of secrecy about the misconduct records to the point of absurdity. It filed a response to The Independent’s records request that it asked Judge Munch to kept secret even from our attorneys. Our lawyers then were expected to respond to whatever argument Brauchler’s office was making without being able to see what those arguments were.

The premise underlying Brauchler’s approach was that the records in Owens’ case and in the records battle itself belonged to him rather than to the public, which underwrites his office.

Even stranger than Brauchler’s requests was that Judge Munch granted them, allowing this blindfolded, pin-the-tail-on-the-donkey legal process to continue without offering a legal basis for keeping the records sealed.

The Independent filed an emergency petition with the Colorado Supreme Court asking that Judge Munch be made to explain his decisions. As it happens, that court, a year earlier, appointed Munch to Owens’ case after taking the unusual step of booting District Judge Gerald Rafferty off it. At that point, Rafferty had presided over the case for more than seven years and was just about to rule on Owens’ appeal.

In June, the state Supreme Court unanimously upheld Munch’s decision to keep the records sealed. In an unprecedented opinion contradicting decades of case law, Justice Melissa Hart wrote that the First Amendment right of “unfettered” public access has no application to judicial records, ever, under any circumstances.

But The Independent didn’t ask for “unfettered” access to court records. We asked for four in one specific case. Hart and her colleagues refused to grant a rehearing when our lawyers pointed out the error.

“If permitted to stand,” our lawyers wrote in Friday’s petition, “Colorado Supreme Court’s rejection of any such First Amendment right will impede the functioning of the justice system, restrict the public’s ability to monitor the courts, and undermine public confidence in the judiciary.”

Holding back

It’s a longshot that the U.S. Supreme Court, itself currently the focus of an historic level of scrutiny, will hear our case. The documents we sought in Owens’ death penalty case may remain shrouded in secrecy indefinitely. In a new twist in the case, the state has now sealed the entire court file – boxes and boxes of records – as if People vs. Sir Mario Owens never happened.

Yet Owens is still on death row in the maximum-security Colorado State Penitentiary. If he’s executed, it will be without public scrutiny about whether his trial and appeal were handled fairly. It will be in our names.

Brauchler, in the meantime, ended his gubernatorial bid last year to run instead for attorney general, the state’s top law enforcement officer. On the campaign trail, the Republican who rose to political prominence as Colorado’s most ardent death penalty proponent has promised  “accountability and transparency.”

“I don’t hold anything back,” he told me during a 2016 interview. “If people want information from me, I’m all into giving it to them.”

If Brauchler becomes attorney general, and if the petition we filed Friday is granted, his office would be representing Colorado before the U.S. Supreme Court. In essence, he would be arguing to keep records related to misconduct in his former office secret. The conflict of interest is stark.

Brauchler’s Democratic attorney general opponent Phil Weiser has stayed mum on the records fight and says he’s reviewing The Independent’s U.S. Supreme Court petition.

“I’m concerned about public access to the court system and ensuring that our system is as transparent as possible,” he told me Friday.

The state Supreme Court ruling echoes far beyond the Owens case and could keep records in any court case, either criminal or civil, under seal at judges’ whims. Denver Post reporter David Migoya has reported that Colorado’s judiciary already has sealed records in thousands of court cases without explanation. Migoya’s investigation has revealed that more than 6,700 cases on file in Colorado courts don’t appear in court records available to the public. He wrote 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.”

In a column Friday in which he called Justice’s Hart’s opinion “sloppy and dismissive,” Denver Post Columnist Vincent Carroll wrote that “Colorado is now a regressive outlier in terms of access to judicial documents, which is why The Independent’s latest move is so important.”

We owe thanks to Zansberg and his colleagues at Ballard Spahr for the year of tireless work they’ve put into this case free of cost to our nonprofit newsroom. We’re also grateful that The Denver Post, The Colorado Sun, and a few dozen individual reporters, lawyers, civic leaders and watchdogs have heeded our ask for help defraying some of the more than $12,000 in administrative costs of filing Friday’s U.S. Supreme Court petition. This records fight affects us all, including the readers for whom we spend our time digging for court records in the first place. It is that dig, most fundamentally, that is the job of journalism.

More than a year into this records fight, the reasons the state judiciary has dug in its heels on secrecy are as unclear to me as what exactly Brauchler has fought so hard to keep from coming to light. Darkness breeds mistrust, even if there’s nothing in that darkness to doubt. As our lawyers quoted former Chief Justice Warren Burger in our petition Friday, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”