Shrouded justice
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 already had 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 the 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 convicted murderer Clifford Galley, 28, was one of a number The Post found that remained suppressed long after the defendant went to prison. Galley was sentenced to 162 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.
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 crucial
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.
• 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 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 drugconspiracy 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 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.”
Key parts of cases concealed
When Frank Huner Jr., a 58year-old Sedalia man, was charged in July 2017 with firstdegree 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.”
David Migoya: 303-954-1506, dmigoya@denverpost.com or @davidmigoya