We all found out about the guy who displayed the Confederate flag in the July Fourth parade because the Town of Frisco expedited the Open Records Request.
For the record, the Colorado Open Records Act “requires that most public records be available to the public.” Such requests also are called Freedom of Information requests. But Coloradans don’t have a law protecting our right to know what our courts are doing. Usually, we count on the press to represent our interests in such cases, which fall under the First Amendment.
In one egregious case, there was definitely some wheeling and dealing going on to secure testimony in a capital murder case. Steve Zansberg represented The Colorado Independent and appealed the First Amendment case to the U.S. Supreme Court. It declined to hear the case. That decision left us with no real First Amendment rights when it comes to Colorado criminal cases.
“I remain appalled that our State Attorney General (Phil Weiser’s) Office filed a response brief to SCOTUS that so flagrantly misrepresented both the Colorado Supreme Court’s holding and the substance of the Colorado Independent’s motion papers,” Zansberg said. “As a result of those misrepresentations, the law … now denies Colorado citizens a fundamental constitutional right enjoyed by the residents of 49 other states and the District of Columbia.”
Zansberg refers to the fact that most states have adopted the American Bar Association standards for release of transcripts to the press. Colorado has not. The spokesman for Weiser says the attorney general stands by his filings.
“The outcome of this case has profoundly undercut my faith in our judicial system,” Zansberg said.
The Colorado Freedom of Information Coalition reported the First Amendment Clinic at Arizona State University’s Sandra Day O’Connor College of Law filed a friend-of-the-court brief with the U.S. Supreme Court arguing the Colorado Supreme Court erred in rejecting the news nonprofit’s request to unseal court records alleging misconduct in the prosecution of death row inmate Sir Mario Owens.
According to The Colorado Independent, the online newspaper was joined by more than 50 news organizations and 21 First Amendment scholars in challenging the Colorado Supreme Court’s decision to seal the records. That included The Denver Post, The Washington Post, The New York Times, National Public Radio, The Associated Press, BuzzFeed, Sinclair Broadcast Group, Politico, NBC Universal, The Boston Globe, The Center for Investigative Reporting and The Seattle Times.
So what happened? Well, it was a long case, spanning years, with many twists and turns. The First Amendment issues revolved around allegations of prosecutorial misconduct in 18th Judicial District Attorney George Brauchler’s office, the guy who ran for Colorado attorney general and lost to Weiser. To be fair, most of the allegations of misconduct occurred under predecessor District Attorney Carol Chambers’ watch, but Brauchler did everything he could to make the convictions stick, even when serious questions arose.
Owens and co-defendant Robert Ray now sit on death row, two of three Colorado death row inmates. All three are black in a state where African Americans represent only 5% of the population, a statistic that always seems to raise questions. Owens and Ray were convicted of the murders of Javad Marshall-Fields and his fiancee, Vivian Wolfe. Marshall-Fields was expected to testify against the two men in another homicide investigation.
The list of prosecutorial misconduct is a matter of public record found in district court Judge Christopher J. Munch’s more than 1,500-page decision. Munch admits there was prosecutorial misconduct. The decision reads like a list of dirty tricks: witnesses paid off, coercion of witnesses threatened with criminal charges if they didn’t testify against Owens and Ray, prosecutors paid bonuses for convictions. The prosecutors’ behavior nearly stooped to the level of the people they were prosecuting.
A really suspicious and disturbing fact is that district Judge Gerald Rafferty presided over the lengthy proceedings and appeared to be coming to the conclusion that the convictions would need to be set aside due to prosecutorial misconduct. He was abruptly removed from the case on what appeared to be a trumped-up contract question. Munch was appointed to deliver the foregone conclusion, even though there were multiple counts of prosecutorial misconduct: “The court concludes that Owens received a fair trial … fair sentencing … constitutionally obtained, justified in law …”
And when The Colorado Independent wanted to report on related judicial proceedings, the records were sealed. The Colorado Supreme Court ruled the transcripts wouldn’t be released. Then newly elected Weiser, two days into his term, followed suit and misrepresented what The Colorado Independent was asking for: transparency. We should demand Colorado adopt American Bar Association standards.
Susan Knopf’s column “For The Record” publishes Fridays in the Summit Daily News. Knopf has worn many hats in her career, including working as an award-winning journalist and certified ski instructor. She moved to Silverthorne in 2013 after vacationing in Summit County since the 1970s. Contact her at sdnknopf@gmail.com.