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Prosecutorial Misconduct Records Protected by Colorado Supreme Court and SCOTUS

by Ed Lyon

In a February 2019 decision that impacts access to public records, the U.S. Supreme Court (SCOTUS) refused to review a unanimous ruling by Colorado’s Supreme Court issued eight months earlier which denied The Colorado Independent access to court documents in a capital murder case. That ruling leaves Colorado as the only state without a presumptive right to public access to criminal case court records.

By October 2018, The Independent had received friend-of-the-court (amici) filings for its SCOTUS appeal from 56 state and national media outlets, including the Denver Post, New York Times and Washington Post, as well as the Associated Press, National Public Radio, BuzzFeed and Sinclair Broadcast Group. They were joined by21 First Amendment scholars.

Two of those scholars, Alan Chen and Justin Marceau with the University of Denver’s Sturm College of Law, argued that the state’s highest court had denied public access to court records “without requiring the demonstration of any valid reason, much less a compelling one, for shielding them from public scrutiny.”

The case arose following the conviction of Sir Mario Owens for the 2004 murder of Gregory Vann in Aurora, as well as a separate conviction the following year for the murders of Vivian Wolfe and Javad Marshall-Fields. Marshall-Fields had been wounded in the attack on Vann and planned to testify against Robert Ray, who also was convicted of Vann’s murder. Vann was a friend of Marshall-Fields, the son of a Colorado state representative, whose girlfriend was Wolfe. [See: PLN, March 2012, p.1].

A 2017 investigation revealed that a juror at Owens’ trial had lied on disclosure forms that failed to reveal relationships with other witnesses and relatives of the alleged victims. The office of 18th Judicial District Attorney George Brauchler knew about the juror misconduct but did not reveal it to the defense. A ruling by Senior District Court Judge Christopher Munch denied Owens a new trial based on juror misconduct, quoting state case law that established a precedent requiring only “a fair trial, not a perfect trial.”

The court records sought by The Independent were of a ruling issued after Owens’ attorneys filed a motion to disqualify Brauchler’s office from the case, which the court denied. At the time, Brauchler was the Republican candidate for state attorney general, and he successfully fought to keep the documents about his office’s knowledge of the juror misconduct sealed. Brauchler lost in the November 2018 elections.

About 8,000 petitions for judicial review are filed annually with the U.S. Supreme Court, but only around 70 are granted, according to scholar Adam Feldman. 

“We knew going in that this would be a long shot,” said Susan Greene, editor of The Independent. “But our news team and board are proud to have stood up and challenged the Colorado Judicial Branch’s secrecy habit and questioned what it seems to interpret as its unbridled authority to shroud from public view whichever records it chooses, regardless of the reason.”

Owens, Ray and another prisoner, all convicted by Brauchler’s office, make up Colorado’s entire death row population. All are black, even though blacks represent only five percent of Colorado’s general population. See: People v. Owens, 2018 CO 55, 420 P.3d 257 (Col. 2018), cert. denied. 



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Related legal case

People v. Owens