Colo. judge weighs news organizations' request to unseal court documents in Aurora shooting trial

Emily Miller | Secret Courts | News | August 10, 2012

The judge in the shooting-spree case against James Holmes heard arguments Thursday on why court documents should be publicly available, but did not rule on the motion.

More than 20 news organizations are asking Chief District Judge William Sylvester to reconsider his decision to seal court documents in the case against Holmes, accused of killing 12 and wounding 58 people at an Aurora movie theater last month.

Sylvester said in a hearing Thursday afternoon that he would issue a written ruling on the request but did not say when. Sylvester entered a one-paragraph order on July 20 sealing all documents in the case, including the "orders, search warrants, affidavits and case file.”

The court file, including the docket, should be made public because the public has a right to observe proceedings in open court and inspect judicial records, according to attorney Steven D. Zansberg, who represented the news organizations in Thursday's hearing.

“To work, effectively, it is important that the society’s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it," the media's motion to unseal stated.

Both the prosecution and the defense argued that unsealing the court documents would interfere with the ongoing investigation.

“The crimes alleged in this case involve numerous victims and hundreds of potential witnesses, many of whom may still require contact by law enforcement, the prosecution, and/or defense,” the prosecution wrote in its response to the media’s motion. “Further unsealing of any and all court documents related to this matter would hinder the ability for a full investigation. In addition, the People share the concern voiced by the defense that they need the opportunity to review discovery prior to any unsealing of this case.”

Under a 2005 Colorado Supreme Court judicial directive, all court files are presumed open to the public except for certain categories of records, including court records from expunged or sealed cases.

In considering whether to grant access to criminal proceedings, courts must balance two competing constitutional rights: the First Amendment right of public access and the Sixth Amendment right to a fair trial.

The U.S. Supreme Court has held that when the First Amendment right of access applies, a presumption of disclosure requires courts to grant access to criminal proceedings unless specific, on-the-record findings demonstrate that closure is “necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.”

In the 1980 Supreme Court case Richmond Newspapers, Inc. v. Virginia and subsequent cases, the Court recognized that the Sixth Amendment right to a fair trial can sometimes overcome the presumption of openness. However, the Court added that “although the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial.”

According to the high court, the fair trial right cannot trump the presumption of access when no measures are taken to protect the fair trial right. These measures include the exclusion of witnesses from the courtroom or their sequestration during the trial, or the sequestration of the jurors to guard them against being subjected to any improper information.

In Colorado, the state Constitution also confers broad free-speech protections, including a right of public access that cannot be infringed without the proper showing.

During Thursday's hearing, "Judge Sylvester asked the parties to make a showing that would satisfy the criminal justice standard" for sealing the records, Zansberg said. “No showing has been made or could be made."

Related Reporters Committee resources:

· News: A legal guide for reporters covering the Colorado shooting