Media groups, CFOIC ask state Supreme Court to order unsealing of Planned Parenthood affidavits

By Jeffrey A. Roberts
CFOIC Executive Director

More than two dozen news media organizations asked the Colorado Supreme Court on Friday to order an El Paso County District Court judge to unseal records in the case against accused Planned Parenthood shooter Robert Lewis Dear or justify their continued sealing under the First Amendment.

The consortium argues that Judge Gilbert Martinez violated both the U.S. and Colorado constitutions by rejecting a motion to unseal affidavits of probable cause in Dear’s court file. Citing the ongoing criminal investigation and the privacy of victims and witnesses, the judge wrote on Dec. 30 that releasing the documents would be “contrary to public interest.”

But because Dear has been ordered to undergo a psychiatric evaluation of his competency, which could take as long as nine months to complete, the media groups say Martinez’s order “will deprive the public of knowing the most basic facts of what prompted government authorities to arrest Dear, to search his residence, and to file the 179-count criminal complaint for more than one year.”


Robert Lewis Dear Jr.

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

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. During a court appearance in December, Dear proclaimed his guilt and called himself “a warrior for the babies.” He told CBS4 this week the attack was “spur of the moment” and not planned ahead of time.

Documents on file in criminal cases typically are released to the public after a defendant has been formally charged. The petition, prepared by media lawyer and CFOIC President Steve Zansberg, says the Supreme Court previously has recognized “that judicial records on file in cases of significant public interest are subject to a right of public access guaranteed by both federal and state constitutions.”

Under the First Amendment and Colorado Constitution, the media groups argue, 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.

The petition notes that Martinez gave no consideration to “less restrictive alternatives,” such as releasing redacted portions of the documents. It also notes that, during a Dec. 23 hearing, prosecutors did not oppose the media groups’ request to unseal the affidavits as long as victims’ privacy is protected and certain aspects of the investigation aren’t disclosed.

Although the basic facts of the Planned Parenthood shooting are known, many important details in the case have been withheld.

In a recent editorial, The Denver Post said the suppressed affidavits may cite evidence or motives other than Dear’s anti-abortion sentiments. “And while President Obama invoked the tragedies of mass shootings in taking executive action on firearms, we still don’t know the type of gun used in this shooting — or guns, for that matter — or how Dear obtained his weaponry,” The Post added.

The petition asks the Court to “restore the public’s right to monitor the operations of its courts.” It points out that, unlike Martinez, the judge in the Aurora movie theater shooting case did conclude that First Amendment right of access apply to affidavits of probable cause in the court file after charges had been filed.

The media organizations involved in the Supreme Court petition are: ABC, Associated Press, CNN, CBS, KCNC-TV, the Colorado Springs Independent, The Denver Post, Dow Jones, First Look Media, Fox News, Gannett, The Gazette, KDVR-TV, KMGH-TV, KRDO-TV, KTTV-TV, KUSA-TV, KWGN-TV, NBC Universal, The New York Times, Rocky Mountain PBS, E.W Scripps, TEGNA, Tribune Media and the Washington Post.

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