PUBLISHER'S NOTE: This is really scary stuff. From the point of this Blog, a prosecution could be tainted by the worst abuses of forensic science - and no one would ever know. It's very existence would be hidden forever under the courthouse rug. From a larger perspective, secrecy is antithetical to open justice and public confidence in a state's criminal justice system. It must be permit in only the rarest circumstances as authorized by law, and then only for as long as necessary. This important investigation - with its disturbing findings - is confined to Colorado. I hate to think what might be revealed in some of the other states.
Harold Levy: Publisher. The Charles Smith Blog.
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PASSAGE OF THE DAY: "Until recently, no information about any of the suppressed cases was available publicly — not the names of the defendants, the charges they faced or even the identity of the judges who closed them — until The Post began questioning the practice. The Post identified 66 felony cases that remained closed to the public — including homicides and sex crimes requiring registration as a sexual offender — even though the defendants had already been convicted and sentenced, some to lengthy prison terms. In every suppressed case, The Post found, the judge’s suppression order and the reasons supporting it are shielded from public scrutiny. Courthouse employees and many law enforcement officials, including prosecutors, will not even acknowledge the suppressed cases exist, The Post found. That means someone could be arrested, charged, convicted and sent to prison in Colorado without anyone seeing why, how or where, and whether the process was fair. “This sounds like the Star Chamber to me,” said Alan Chen, a constitutional law professor at University of Denver’s Sturm College of Law, referring to the 15th-century English court chastised for arbitrary rulings and secret proceedings. “Colorado is one of the worst states in terms of access to criminal court records for reasons I really have no explanation for. I’ve not heard of this being practiced anywhere else in the country. It’s frightening that if anything improper is going on, no one will know about it or have any way to find out."
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QUOTE OF THE DAY: “Court records in general are a critically important source of information for the public,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. “Without access to court records and proceedings, Coloradans can’t monitor the judicial system. They can’t know whether it’s working properly or not.”
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STORY: "Shrouded justice: Thousands of Colorado court cases hidden from public view on judges’ orders," by reporter David Migoya, published by The Denver Post on July 12, 2018.
SUB-HEADING: "A Denver Post investigation found more than 6,700 cases — the bulk of them criminal — were suppressed."
GIST: "Thousands
of court cases across Colorado — hundreds of them involving violent
felonies — are hidden from public view, concealed behind judges’ orders
that can remain in effect for years, The Denver Post has found. More than 6,700 civil and criminal cases have been restricted from
public access since 2013, usually by judges who agreed to a request from
prosecutors or defense lawyers to shield them, The Post found. Of
those, 3,076 are still under suppression orders that keep the details
away from the public — 345 are felony criminal cases — as they work
their way through the legal system, according to state computer records. Until recently, no information about any of the suppressed cases was
available publicly — not the names of the defendants, the charges they
faced or even the identity of the judges who closed them — until The
Post began questioning the practice. The Post identified 66 felony cases that remained closed to the
public — including homicides and sex crimes requiring registration as a
sexual offender — even though the defendants had already been convicted
and sentenced, some to lengthy prison terms. In every suppressed case, The Post found, the judge’s
suppression order and the reasons supporting it are shielded from public
scrutiny. Courthouse employees and many law enforcement officials,
including prosecutors, will not even acknowledge the suppressed cases
exist, The Post found. That means someone could be arrested, charged, convicted and
sent to prison in Colorado without anyone seeing why, how or where, and
whether the process was fair. “This sounds like the Star Chamber to me,” said Alan Chen, a constitutional law professor at University of Denver’s Sturm College of Law, referring to the 15th-century English court
chastised for arbitrary rulings and secret proceedings. “Colorado is
one of the worst states in terms of access to criminal court records for
reasons I really have no explanation for. I’ve not heard of this being
practiced anywhere else in the country. It’s frightening that if
anything improper is going on, no one will know about it or have any way
to find out. Although courtrooms remain open to the public, including hearings for
suppressed cases, the only way to know when a hearing is to occur is to
be there when it is scheduled. A Denver Post reporter happened to
attend one hearing in which a murder suspect pleaded guilty to
conspiracy to commit first-degree murder, and no public record of the
event existed. The only way to learn the defendant’s name was to be
there when the judge announced it. According to interviews and analysis of cases that were later opened
to the public, the reasons behind a suppression order are varied:
Prosecutors don’t want to alarm other members of a drug ring as they’re
being rounded up; the case involves a juvenile defendant; or law
enforcement says a criminal investigation is ongoing. Civil cases have
been suppressed as well, typically — though not all — to shield victims
of abuse or sexual assaults from publicity. But there are other reasons as well. The Post found one
criminal case — that of a board member and part-owner of the Broomfield
Academy charged and convicted of felony sexual assault of a child and misdemeanor child abuse — in which prosecutors requested and received a suppression order to avoid publicity. The case remains suppressed. It found another — of a member of the Adams County 14 school board eventually convicted with attempting to lure a child for sex
— in which the judge ordered the suppression at the outset, without
anyone even asking for it, because the judge “had concerns about
releasing information,” records obtained by The Post show. The case
remains suppressed. The case of Clifford Galley,
28, convicted of attempted first-degree murder, was one of a number The
Post found that remained suppressed long after the defendant went to
prison. Galley was sentenced to 169 years in prison and won’t see
freedom in his lifetime. Documents related to the case were suppressed
after his arrest in 2013 and no one except for his lawyer, prosecutors
or a judge could see them. Last month, a judge lifted the suppression
order after The Post asked prosecutors questions about it. His appeal,
however, remains suppressed. Denver Post emails to several of the judges responsible for
suppressed cases went unanswered except for one, and that judge passed
it along to state court administrators to respond. Suppressed cases are different than those sealed by the
court, the reasons for which are limited by state law. Sealed cases are
restricted to those where a defendant was exonerated or, under certain
conditions, the case was dismissed, such as with a deferred sentence.
Some low-level drug felonies can also be sealed under specific criteria. By contrast, a judge may suppress a case for any reason at
his or her discretion — usually, but not always, at the request of
lawyers in the case, but most frequently prosecutors. Once a case is
suppressed, it remains so until a judge reopens it, which The Post found
often does not happen because neither defense lawyers nor prosecutors
ever bother to ask. “This isn’t right; it can’t be right. It’s a chance for them
to victimize our family all over again,” said Mark Chalfant, whose son,
Mark, was killed in a Taco Bell parking lot in Aurora in July 2014. Four teenagers were convicted in the case — one as a juvenile — yet all the records remain closed under suppression orders three years later. Although media attention about the shooting and the arrests
was widespread, the court cases were immediately suppressed. Only the
30-year sentence of triggerman Sterling Hook made a headline in a local newspaper a year later — after prosecutors released the information. “No one else ever gets to know what they’ve done,” Chalfant
said, noting that no one other than family attended court hearings
spread over a year. “That’s just wrong." Court records “critically important”: Open-records experts and several attorneys interviewed by
The Post were troubled by the newspaper’s findings, saying it runs
against the Colorado and U.S. constitutions and their guarantee of an
open and accessible court system. “Court records in general are a critically important source
of information for the public,” said Jeff Roberts, executive director of
the Colorado Freedom of Information Coalition.
“Without access to court records and proceedings, Coloradans can’t
monitor the judicial system. They can’t know whether it’s working
properly or not.” The Colorado Supreme Court in June refused to declare that
access to court records is an absolute right guaranteed by the First
Amendment or the Colorado Constitution. But that decision dealt with a
specific document that had been sealed within a court file, not the
entire case itself or its details. The Post’s investigation also found: — Most suppressed cases had scant or no media attention, and
the majority of the few that did were typically at the time of a
defendant’s arrest, before anything was suppressed by a judge. Several
suppressed cases did get press coverage when charges were filed and
again after a defendant was sentenced, when prosecutors issued an
announcement — but nothing in between. — Until recently, no trace of a suppressed case existed in
the public-access computers the state provides at county courthouses
throughout Colorado, or the online for-pay services that compile the
same data and the state recommends to the public.
That has changed since The Post began inquiring. Until last week, the
public still could not see what charges had been brought against a
person in a suppressed case or see any details about it, such as the
next court hearing or any sentence given. — Sealed cases are restricted by law to only the judge who
issued the order, and acknowledging their existence is prohibited.
Public information about suppressed cases, however, per Colorado Supreme Court rule,
should include names and case numbers, though the details of a case and
the courtroom proceedings around it have been restricted. Despite that,
court officials and some prosecutors’ offices still treat the two types
of cases as the same and refuse to give any information about a
suppressed case. — Public schedules posted daily outside of courtrooms,
called dockets, show the cases being heard that day, including the names
of defendants. If the case is suppressed, however, the docket only
shows that a time is allotted for a hearing, but not why or for whom. — Even high-profile cases that received intense publicity
are under suppression orders, meaning access to any of their court
records today is prohibited. Among them: Aurora theater shooter James Holmes; witness killers Sir Mario Owens and Robert Ray; and Jessica Ridgeway killer Austin Sigg.
The media was able to follow these cases by appearing at a public court
hearing to learn when the next was to be held. Many times prosecutors
and defense lawyers say they simply forgot the case was still
suppressed. “That’s very troubling”: The Denver Post began investigating suppressed cases in
Colorado nearly a year ago after reporters were denied access to records
and expressed concern about the practice. The Post obtained data from
the State Court Administrator
that helped it determine the extent to which suppressions have been
used in each judicial district in Colorado. The Post then reviewed
dozens of suppressed cases that have been unsuppressed to see how the
practice was being used. Since 2013, there have been 6,707 cases suppressed by judges
in Colorado, and the bulk of them were criminal cases, The Post found —
misdemeanors first, then felonies, followed by civil court matters. A
judge’s suppression order was lifted in 3,631 of them, meaning the
public can now access the cases, sometimes soon after a defendant was
arrested or parties to a civil lawsuit were served with court papers,
records show. “Generally it’s one thing to suppress a (single) document,
which is very legitimate, but when entire files begin to disappear from
the public record, that’s very troubling,” Denver attorney Larry Pozner
said. “We’re very skeptical in America of things done in the dark, and
other than juvenile law, you can walk into an American courtroom and
take notes, and they can’t say, ‘It’s none of your business, get out of
here.’ ” The Post’s analysis found that the number of suppressed cases varies dramatically from county to county. Prosecutors in La Plata County,
where Durango is the county seat, have suppressed 366 felony cases over
the past five years, the most by any jurisdiction, records show. But
those cases were nearly always unsuppressed once a defendant was
arrested and brought to court, the longest taking two years, The Post
found. “It’s not uncommon to suppress a case until the defendant is
arrested and the warrant served,” said Christian Champagne, district
attorney for Colorado’s Sixth Judicial District that includes La Plata,
Archuleta and San Juan counties. “Ours is an area where people come
through and leave for long stretches of time.” In the 18th Judicial District,
which is made up of Arapahoe, Douglas, Lincoln and Elbert counties, 62
cases are still suppressed from public view even though the defendants
have been tried, convicted and sentenced, The Post found, the highest
among the state’s 22 judicial districts. The majority of the cases — 47,
most of them from a single drug-conspiracy investigation from four
years ago — are in Arapahoe County, followed by 14 others in Douglas
County, and one in Elbert County. That total doesn’t include 115 active felony cases that are
still under suppression in the district — nearly half the statewide
total, The Post found. “I still think there are some legitimate reasons on behalf
of the safety of certain victims and witnesses … that we ought to have
the ability to continue to suppress those,” 18th Judicial District
Attorney George Brauchler said. In 2015, prosecutors asked that the Douglas County sex-assault case against Broomfield Academy then-owner and board member Michael Greenberg, 62,
be suppressed because it likely would garner a lot of media attention. A
television station reported his arrest. There was no media report after
the suppression order was issued. The private school is to close this
year, according to its website. The case has remained suppressed ever since even though
Greenberg pleaded guilty to felony sexual assault of a child in which he
received a four-year deferred sentence, and to a misdemeanor charge of
child abuse. He is a registered sex-offender in Centennial, records
show. Following The Post’s inquiry, prosecutors have asked a judge to
unsuppress the case. “Our office filed a motion to suppress, the reason being is
that the case would be subject to extensive pretrial publicity,”
Brauchler’s Senior Chief Deputy District Attorney Rich Orman told The
Post in an email, saying he and Brauchler were not consulted by the DA
who handled the case. “This was a mistake, and we should not have sought
suppression of a court file for this reason.” Brauchler said suppression orders sometimes are important to
solving serious crimes, but concedes that once their usefulness is
over, cases should not remain hidden from public scrutiny. “Already in many cases, specifically gang and some domestic
violence cases, the concern over an individual’s own safety is so strong
that if you can’t provide some other assurance, even in the short-term,
I think we’ll lose out on cooperation from a lot of key witnesses,”
Brauchler said. “But the public should maintain the ability to
scrutinize what we do, why we do it and how we go about that.” After speaking with The Post, Brauchler’s office began
unsuppressing many of the cases and instituted policies limiting how the
practice should be used in the future. There are some cases, however,
that Brauchler said should remain suppressed for the safety of the
defendant — one of whom is serving a 16-year prison term in a rural
county jail after having testified against another defendant who was
convicted of murder and sentenced to life in prison, records show. There have been no suppressed cases involving a criminal
defendant in Denver District Court the past five years, the years The
Post reviewed, according to records. “This is just a completely foreign procedure in my years of
experience as a district attorney,” said former Denver District Attorney
Mitch Morrissey. “In my 33 years, I don’t know what you’re talking
about. I’ve never even heard of suppressing an entire case. How can you
have cases that don’t even show up on a court docket? I’ve never seen
such a thing.” Experts in open-records law say the practice of suppressing
entire cases rubs against the grain of a system intended to be
transparent. “The most outrageous, unjustifiable and unconstitutional
thing you’ve found is the public being denied the right to know which
cases are on file in our courts of law against which defendants, and to
have access, at the minimum, to the indexes of those cases,” said Denver
attorney Steven Zansberg, an expert on open-records laws who represents
a number of media outlets including The Denver Post. “How is there a case where the public doesn’t know how or
why someone is arrested or in prison?” he asked. “Courts throughout the
land have held the public — we the people — have a constitutional First
Amendment right to have access to those records.” Many cases suppressed: When Frank Huner Jr., a 58-year-old Sedalia man, was charged in July 2017 with first-degree murder for allegedly killing his son, whom he said he mistook for an intruder, news of his arrest peppered the media. Since then, however, there’s been not a word about the
Douglas County case — and not a single reference to it could be found
anywhere among the state’s courthouse databases available for the public
to search criminal and civil cases. Courthouse employees refused to
identify the case even existed. During the course of The Post’s investigation, the State
Court Administrator has changed the computer programs that provide the
public with information about criminal and civil cases so that a
defendant’s name, case number and the county where the case is being
heard is displayed. Until a week ago the public could not see the charges they
faced or details about a suppressed case’s progress through the judicial
system. Such is the case of Daniel Pesch, a 34-year-old Littleton man charged in December 2017 for the 2010 murder of Kiowa High School science teacher Randy Wilson.
The case has been suppressed since the moment it was filed, even though
the media covered Pesch’s arrest. It’s only been recently unsuppressed
after dozens of hearings. Still, several key portions of the case remain
concealed from public view. As well with Jeffrey Falk, 54, a former ThunderRidge High
School math teacher sentenced in June 2016 to 21 years in prison for
victimizing young boys and collecting “a library of child porn.” He had
pleaded guilty in Arapahoe County district court to three counts of
sexual exploitation of a child two months earlier. His arrest in 2015 made headlines, but the four cases
against him were immediately suppressed until he was sentenced. No other
stories were published until after he pleaded guilty, was sentenced,
and prosecutors later made a public announcement in June 2016. One of the four cases against Falk was unsuppressed a month
after that, records show — but the other three felony cases for which he
was sentenced remained closed. That changed on June 13 after The Post
began asking why. The first-degree murder case in Adams County against juvenile Aidan Zellmer remains suppressed even though a judge has already ruled the 15-year-old is to stand trial as an adult. And despite media coverage about the case, the warrant
affidavit that describes the evidence that led to Zellmer’s arrest
remains suppressed, as well as any other information about the case
against him. Even when a defendant has been charged, convicted and sent
to prison, if the case is suppressed, some district attorney’s offices
still treat it as if the matter has been sealed, even though the two are
very different. The short answer is that suppressed and sealed means the
same thing to the extent the public is barred from access,” Denver
district attorney’s office spokesman Ken Lane told The Post when asked
to provide information about a suppressed case from 2013 in which Denver
was the special prosecutor in a different county. “So, if whatever case
you’re referring to is in fact suppressed by a court order, then
respectfully, I’m not going to violate a court order and release case
information to the public.""
The entire story can be read at:
https://www.denverpost.com/2018/07/12/suppressed-colorado-court-cases-hidden-public-view/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
