The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Brandon Combs pointed me to the news about the case being sealed, so I reached out to Denver-based First Amendment lawyer Steve Zansberg, a partner at Ballard Spahr, who knows a great deal about such matters; and he was kind enough to pass along the following:
Throughout my career here, which began in 1996, Colorado has had more than its fair share of tragedies that have attracted national media attention: Columbine, Kobe Bryant, the Aurora Theater Shooting, a fatal shooting in a Planned Parenthood clinic the day after Thanksgiving. And, each time such a terrible tragedy had befallen us, the same day, or in the days following it, my phone "rings of the hook," with calls from reporters, producers and news directors saying, "we need to get our hands on the records in the court file, A.S.A.P., so we can tell our readers and viewers what happened, and why [suspect] is charged with [#] counts of murder!"
Not this time.
Last Tuesday, May 7, two high school students shot and killed an 18-year old (Kendrick Castillo, who was to graduate last Friday) and wounded eight other students at the STEM Charter School in Highlands Ranch, Colorado. Both of the shooters were apprehended that day and are being charged, as adults, with multiple counts of murder and attempted murder. The older of the two suspected shooters, Devon Erickson, has appeared in court twice.
But the entire court file in his murder case is "suppressed" from public inspection. This even over the express request of the prosecutor, George Brauchler (who also tried the Aurora Theater Shooting case), to have the judge unseal all court records other than the affidavits of probable cause. Even the criminal Complaint, asserting 48 separate counts, is not available for public inspection. In Colorado, such a "record of official action" cannot be sealed from public view, as a matter of state law.
And yet … I've received not a single call, or email, from anyone (other than Professor Volokh) asking how this could be the case. Isn't this America, after all?
Well, not exactly; it's Colorado.
You may recall that last year, our State Supreme Court issued a ruling saying that in this state—unlike all others—the public enjoys no presumptive right, under the federal or state constitution, to inspect records on file in courts of law. Trial judges, like Theresa Slade in Douglas County District Court, who is presiding over the Erickson murder case, have been given essentially unfettered "discretion" to seal their court files. And, (with our State Supreme Court's blessing), they don't need to articulate any reason beyond "there are countervailing considerations" to justify their denying the public's ability to monitor the conduct of judges, prosecutors and other officers of the court.
So, perhaps that is why my phone hasn't rung. Because in these cash-strapped times, members of the news media cannot afford to fight battles of principle that are "almost certainly a losing cause." And, who knows, there is a chance the court file, or some portions of it, may be unsealed when Erickson next appears in court on June 7. Perhaps.
Yes, sadly, this is America, or at least one outlier state in our great nation.