Uniform standard for sealing criminal court records not needed, judicial committee says

By Jeffrey A. Roberts
CFOIC Executive Director

In a terse letter, a committee of the Colorado Supreme Court has rejected CFOIC’s call for a uniform standard for sealing court files in criminal cases.

More than a year ago, the Colorado Freedom of Information Coalition asked the state court system to adopt such a rule, noting that disputes over the closure of records in high-profile criminal cases often focus not just on whether records should be sealed, but on the appropriate legal standard to apply in making that determination.

CFOIC President Steve Zansberg, a media law attorney with Ballard Spahr in Denver, proposed a rule modeled after one set by the American Bar Association and previously applied by the Colorado Supreme Court in resolving the closure of a preliminary hearing.

Steve Zansberg

But in a one-paragraph letter sent in November, Colorado Court of Appeals Judge John Daniel Dailey told Zansberg that his recommendation had been turned down by the Supreme Court’s Advisory Committee on Rules of Criminal Procedure.

“In the committee’s view, the matters encompassed in the proposed rule are adequately addressed in (Chief Justice Directive) 05-01 and existing case law,” wrote Dailey, the committee’s chairman. Chief Justice Directive 05-01 sets state policy on access to court records.

Zansberg said the committee’s response is disappointing, “both substantively and procedurally.”

“Substantively, it is absolutely clear that there is the need for a uniform standard, that recognizes the public’s First Amendment right of access, to be codified in a state rule,” he wrote in an email.

As a prime example, Zansberg cited the sealing of warrant affidavits in the case of Robert Lewis Dear, who is charged with killing three people and wounding nine others in a 2015 shooting rampage at a Colorado Springs Planned Parenthood clinic.

El Paso County District Court Judge Gilbert Martinez, now retired, sealed the affidavits after Dear was charged, writing that victim and witness privacy and an ongoing criminal investigation made release of the documents “contrary to public interest.”

A news media consortium (which included the CFOIC) objected, prompting the Colorado Supreme Court to order Martinez to reconsider the sealing order. He lifted it on remand “without acknowledging that his initial order had violated the U.S. Constitution,” Zansberg said.

Under the First Amendment, the media consortium argued, judicial records cannot be sealed without a finding that sealing is necessary “to protect a governmental interest of the highest order,” such as preserving a defendant’s right to a fair trial, and that alternative means of protecting that interest aren’t available or are inadequate.

News organizations in Colorado have had to fight for the public’s access to court records in other high-profile cases, including the prosecutions of Aurora movie theater shooter James Holmes and Austin Sigg, the kidnapper and killer of 10-year-old Jessica Ridgeway. Each time, a judge determined the appropriate legal standard to apply.

Zansberg said it is also “profoundly disappointing” that the Supreme Court advisory committee took nearly a year to consider CFOIC’s proposed rule “without taking up our offer to appear and discuss it with them … Rule-making committees should be well-informed and receptive to hearing from various stakeholders in the criminal justice system.”

Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like and follow CFOIC’s Facebook page.

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