Free Speech

Does the First Amendment Protect a Presumptive Right to Access Criminal Court Records?

The Colorado Supreme Court said "no" -- eleven federal circuits and many state high courts say "yes" -- the Supreme Court is being asked to review the case.

|The Volokh Conspiracy |

Here's the summary of argument from the petition, in Colorado Independent v. District Court:

"Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view." Gannett Co. v. DePasquale, 443 U.S. 368, 429 (1979) (Blackmun, J. concurring in part and dissenting in part) (citation omitted).

This case presents an important foundational ques­tion about the public's constitutional right to information concerning the operation of the criminal justice system. The Colorado Independent asserted a quali­fied right under the First Amendment to access sealed motion papers, a hearing transcript and an order relating to a capital murder defendant's effort to disqualify his prosecutor for misconduct and conflicts of interest. Contrary to every federal appellate court and every state court of last resort that has decided the issue, the Colorado Supreme Court categorically rejected the existence of a presumptive constitutional right of access to the sealed records.

The holding of the Colorado Supreme Court should be reviewed and promptly reversed because it is so clearly and dangerously wrong. Left undisturbed, it will erode access to important information about crimes prosecuted in Colorado state court and undermine confidence in the judiciary.

In a series of cases culminating in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II"), this Court defined a qualified First Amendment right of public access to judicial proceedings where (a) the type of proceeding tradition­ally has been open to the public and (b) openness advances the proceeding's objectives. A judicial pro­ceeding subject to this right, the Court further held, can be closed only where closure is essential to avoid a substantial probability of harm to some overriding interest and no effective alternative exists. In artic­ulating this standard, this Court twice held that the First Amendment access right attaches to the tran­scripts of proceedings that are themselves subject to that qualified right.

Over the following decades, eleven federal courts of appeal have held that the qualified constitutional access right applies to other types of judicial records beyond transcripts of court proceedings. No federal appellate court has denied the existence of a First Amendment-based right to inspect motion papers, transcripts or orders in a criminal case. Yet, the Colorado Supreme Court has now held just that.

The Colorado Court issued this singularly contradic­tory holding in a capital murder case of significant public concern, in which the trial judge sealed a murder defendant's motion to disqualify the prosecutor, con­ducted a closed hearing on that motion, sealed the hearing transcript, and denied the defendant's motion in a sealed ruling. The trial court stated only that "countervailing considerations" justified secrecy.

The Colorado Supreme Court rejected a First Amendment right to any of the records without employing the two-part "experience and logic" test this Court formulated nearly 40 years ago to identify where the access right exists, and without addressing this Court's holdings that the qualified access right applies to hearing transcripts in a criminal prosecu­tion. It affirmed the trial court's denial of access to motion papers, a transcript and a court order without any factual finding of a compelling need for secrecy and with no explanation why a more narrow sealing order would not suffice.

The rejection of a qualified First Amendment access right to these judicial records should be reviewed and promptly reversed because it conflicts with the rulings of this Court and the unanimous view of other state and federal appellate courts that the access right applies to these types of judicial records. The Colorado Court's ruling deserves review for the further reason that the access right it rejects plays a fundamental role in the successful functioning of the judicial system. If permitted to stand, the Colorado Court's categorical rejection of a First Amendment right to access any and all judicial records will impede the proper functioning of that state's criminal justice sys­tem, restrict the public's ability to monitor the courts, and undermine public confidence in the judiciary.

Here, by the way, is the factual dispute behind the case:

Sir Mario Owens was convicted and sentenced to death in 2008 for killing a witness scheduled to appear in another murder case. At his trial there was no definitive physical evidence, no confession, and no eyewitness. Prosecutors built their case almost entirely on the testimony of informant witnesses.

During the course of his post-conviction review proceedings in the trial court, one of the prosecutors disclosed a set of secret "witness protection files" that had never been provided to the defense. When the district attorney was ordered to turn the files over, they revealed undisclosed payments and other favors to the informant and cooperating witnesses. One was given a district attorney's office car, others were given gift cards for local businesses and one received cash to purchase Christmas presents. A main witness was threatened with being charged for the murders himself if he would not testify against Owens.

Owens' prosecution raised concern at the time of his trial in 2007 because of the unusual secrecy imposed— a string of court orders sealed much of the court record. All parties remained gagged even from speak­ing about the sealed court filings until 2013, and practically all of the voluminous case file remains sealed to this day, including the case docket. The post-trial revelations about the district attorney's conduct, specifically the withholding of potentially exculpatory evidence, attracted renewed public interest because it was consistent with a pattern of similar misconduct in other cases by the same office.

On October 6, 2016, Owens filed a motion to disqualify the 18th Judicial District Attorney's office and to appoint a special prosecutor (the "Motion to Disqualify"). He filed that motion under seal as required by the trial court's order, which itself is suppressed from public inspection. Owens also submitted under seal a motion to unseal and make public his Motion to Disqualify. The district attorney filed sealed oppositions to both motions. Neither the two motions by the defendant nor the two responses filed by the district attorney appear on the court's docket.

On December 12, 2016, district court held a closed hearing on Owens' sealed motions, which resulted in the creation of a sealed transcript. The district court then denied both the Motion to Disqualify and Owens' unsealing motion in orders that were themselves sealed. Accordingly, all records relating to Owens' motions, the transcript of the closed hearing, and the district court's rulings on the motion, were entirely hidden from the public ….

Months later, on September 14, 2017, the district court issued a 1,343-page post-conviction order that found the district attorney had engaged in multiple actions constituting prosecutorial misconduct, includ­ing deliberately withholding or suppressing exculpatory evidence. district court nonetheless found that the withheld or suppressed exculpatory evidence would not have had an impact on the outcome of the trial….

On November 7, 2017, The Colorado Independent moved to unseal the Sealed Records …. [Eventually,] the Colorado Supreme Court issued a five-page opinion summarily holding that the public enjoys a constitutional right only to attend judicial proceedings, but that there is no qualified First Amendment right to inspect any of the [sealed records]….

I signed on to an amicus brief, drafted by University of Denver law professors Alan Chen and Justin Marceau, urging the Court to hear the case.


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  1. Never have trusted informant testimony when tainted by government enticement. Just bribery under cloak of government goodness. This sounds like a classic case, but then, that’s what any defendant would claim. On the other hand, seems like quite strenuous efforts to hide all the informant bribery, above and beyond the normal informant protection. Seems to me the underlying problem is building a case entirely on informants.

    Also curious about the defendant’s name, “Sir” Mario Owens. But not curious to download PDFs.

    1. My guess on the “Sir” is that it is, in fact, his legal name, either given at birth by goofy parents or legally changed by Sir himself. If you wanted, you could legally change your name to “Sir Remember to keep it all polit,” unless the court found that the name change was done in order to perpetrate a fraud or some other unlawful act.

      1. That’s my uninformed guess too, but it’s the back story to that which would be interesting, and what bearing it has on this case.

        1. It’s definitely his name. His lawyer consistently refers to him as “Mr. Owens,” but if he was actually knighted, however unlikely, he would be called “Sir Owens.”

          The pdfs don’t really give much info on that matter, from what I could tell. I resorted to news articles.

          1. Only subjects of the crown gain the title “Sir” when knighted. Americans who have been knighted can be referred to as, e.g., “the Knight Gormadoc” but never “Sir Gormadoc”.

          2. I thought it was always “Sir “, so he was hoping to be called “Sir Sir”.

            1. And if he became a military officer it could be “Yes Sir, Sir Sir!”.

              1. This is the first time I’ve ever been called “Sir,” when it hasn’t been followed with, “I am going to have to ask you to leave.”

          3. No, knights are referred to by their given name, so he’d be Sir Mario, not Sir Owens.

            1. Except his first name is Sir, so he’d be Sir Sir

  2. I’m going to like the 21st Century.

    It’s going to be extremely difficult to keep govt information hidden from the public (with appropriate safeguards for classified information, PPI, HIPAA, etc.).

  3. I reread that First Amendment and I do not see anywhere in it a right to access criminal records. In fact, the words, “access”, “criminal”, and “records” never once appear in the amendment.

    You Living Constitutionalists just keep on making-up whatever rights you can think of….

    1. I appreciate your argument, which is the argument then-Justice Rehnquist made in his solo dissent in Richmond Newspapers, Inc. v. Virginia (1980): “Being unable to find any such prohibition [on the closing of trials] in the First, Sixth, Ninth, or any other Amendment to the United States Constitution, or in the Constitution itself, I dissent.”

      One can debate whether Justice Rehnquist was right on that score, or whether the other Justices were right (see, e.g., from the lead opinion, “The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily,” as well as Justice Brennan’s concurrence, which focused both on this and on the long tradition of public access). But Rehnquist’s view did not prevail, and the view that did prevail, in Richmond Newspapers and later cases, cuts in favor of the Colorado Independent here, I think.

      1. Unless you can identify somewhere such a prohibition exists in the Constitution, I don’t see how Rehnquist could possibly NOT be right. The bottom line is, just because something is a good idea doesn’t mean it’s in the Constitution.

        1. 9A

    2. Agreed. It’s a really good idea that the public should have access to this information, but that doesn’t mean the 1st amendment protects the right to access it.

      1. Seems like more a 5th and 14th right. How can the government assert it deprived someone of their liberty under due process of law, when the proceedings were kept secret. And even though the trial was public, a significant amount of the decisions deciding the outcome of the trial were kept secret from the public and the jury.

  4. I agree that as a First Amendment right, this doctrine is very strained.

    At least in a criminal case, a better basis is the Sixth Amendment right to a public trial. One of the purposes of that is the public scrutiny keeps the Courts on the straight and narrow. (But the problem with that is that the right is personal to the defendant. The defendant can waive the right; sometimes a defendants WANTS the courtroom sealed, but the press objects.)

  5. The problem here isn’t that the constitution is silent on the subject. The problem is that it has contrary language.

    Amendment 6 grants “the accused” a right to a public trial in a criminal case. It is thus the right of the accused, not the right of the public. The accused may have the right to include the press in the “public.” But again it is the accused’s right, not the press’.

    You cannot use general principles to interpret a different, more general amendment to contradict something a specific amendment specifically says.

    For civil trials, there is no right at all. And why in the world should a company have a right to keep trade secrets secret, but a family not have a right to family secret? Why in the world does it make sense for corporations to be able to say no to the press, but not individuals? It’s one thing to say corporations are persons equal to natural persons. But why in the world should they be more equal than natural persons?

  6. This is among the circumstances in which state constitutional law deserves a claimant’s consideration.

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