CFOIC and media consortium ask judge to unseal court records in Owens death-penalty case

By Jeffrey A. Roberts
CFOIC Executive Director

The Colorado Freedom of Information Coalition joined The Denver Post, The New York Times and several other media organizations Friday in asking a judge to unseal court transcripts in the case against death-row inmate Sir Mario Owens.

Transcripts of proceedings held in open court are still secret more than five years after Owens and Robert Ray were convicted and sentenced to die for killing Javad Marshall-Fields, a witness in a murder case against them, and Marshall-Fields’ fiancée, Vivian Wolfe. The index of court filings in the case, known as the register of actions, also is unavailable. A search for Owens’ name or the case number in the database produces no results.

“Not only is this status quo an unequivocal violation of the public’s constitutional right of access to court records in criminal cases, it undermines our nation’s firm commitment to transparency and public accountability of the criminal justice system,” argues the motion filed in Arapahoe County District Court. The Colorado Supreme Court lifted a stay in the case Thursday, clearing the way for the media consortium’s motion.

Also asking the court to unseal records in the Owens case: The Associated Press, The Colorado Independent, Gannett, KDVR-TV, KMGH-TV, KUSA-TV, KWGN-TV, the Reporters Committee for Freedom of the Press and the E.W. Scripps Co.

District Court Judge Gerald Rafferty ordered most of the transcripts sealed in 2007 because of “witness protection issues.” Owens’ lawyers asked the Colorado Supreme Court to unseal the case files last year, citing accusations of prosecutor misconduct in the case. The court initially granted a petition to review the case but then quickly withdrew it, indicating there had been a clerical error.

The new motion argues that the public’s right to inspect court records is protected by the First Amendment and also is guaranteed by Colorado’s constitution when the documents involve matters of public interest. It also notes that Arapahoe County District Court Judge Carlos Samour denied a request by defendant James Holmes to seal courtroom transcripts in the Aurora movie theater shooting case.

“Under the standard adopted by the Colorado Supreme Court, the press and public cannot be denied access to the records of this Court unless such access would create a clear and present danger to the administration of justice, or to some equally compelling government interest, and no alternative exists to adequately protect that interest,” the motion says.

A hearing on the motion was set for March 6.

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