El Paso County judge defends sealing of records in Planned Parenthood shooting case

By Jeffrey A. Roberts
CFOIC Executive Director

The judge in the Planned Parenthood shooting case defended his sealing of court records, arguing Tuesday that news organizations did not have a First Amendment or Colorado constitutional right to inspect the records while the police investigation was ongoing.

Answering a Jan. 27 order from the Colorado Supreme Court, state Attorney General Cynthia Coffman outlined reasons why El Paso County District Court Judge Gilbert Martinez was right to seal affidavits of probable cause in the case against Robert Lewis Dear. Coffman’s office represents the Colorado Judicial Branch on legal matters.

Accepting a media consortium’s arguments for unsealing the records would be “unprecedented in Colorado” and “contrary to the great weight of the case law,” Coffman wrote. Doing so, she added, would undermine the Colorado Criminal Justice Records Act, the Supreme Court’s rules on access to court records and “the important supervisory powers of the trial courts to protect ongoing criminal investigations and the privacy rights of victims and witnesses.”

Dear, 57, is accused of killing three people and wounding nine others during a shooting rampage at a Planned Parenthood clinic in Colorado Springs on Nov. 27.

The media consortium argued that Martinez’ order could keep the affidavits secret for more than a year, which would “deprive the public of knowing the most basic facts of what prompted government authorities to arrest Dear, to search his residence, and to file (a) 179-count criminal complaint.”

The media organizations urged the Supreme Court to clarify that under both the federal and state constitutions, “the public enjoys a presumed right of access to documents on file in Colorado criminal cases after the defendant has been formally charged…”

But Coffman, on Martinez’ behalf, presented arguments that neither constitution guarantees that right.

Her filing acknowledges, however, that three months into the case, the criminal investigation is likely over, “significantly diminishing the trial court’s concern that public disclosure would harm the process.” And because Dear has made statements proclaiming his guilt, “information that might have been previously sealed or redacted is now in the public domain.”

“Although the majority of the shooting victims’ names have not been released and would be appropriately redacted, these changed circumstances may render it appropriate to release the affidavits of probable cause in redacted form,” Coffman wrote.

The Colorado Freedom of Information Coalition also signed the media consortium’s Supreme Court petition as did the Colorado Press Association, the Colorado Broadcasters Association and the Reporters’ Committee for Freedom of the Press.

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