State Supreme Court sets new rules for criminal case suppression

Judges will be required to hold hearings and issue written orders

The Colorado Supreme Cour t on Thursday voted to approve rules for how criminal trial judges can restrict public access to court records, a direct response to Denver Post stories that exposed how thousands of cases have been kept from public view with little to no oversight for how that was done.

The rules, proposed by a

statewide committee of attorneys and judges who made recommendations after months of meeting behind closed doors, are to take ef fect sometime in 2021, according to Chief Justice Nathan Coats who disclosed the approval at a meeting of the legislature’s Joint Budget Committee.

Coats said the change is intended to solve the problem of cases being sealed and then “disappearing into a dark hole.”

The rules are the result of a Denver Post investigation in 2018 that revealed thousands of criminal cases were suppressed from the public – some for decades and frequently without reason or cause. Many still are.

One such case was the indictment of Kelly Turner, charged in the death of her 7-year-old daughter, Olivia. Five months after Turner was charged with faking the girl’s terminal illness and killing her, a Douglas County district cour t judge restricted all public access to the murder case file.

Since March 2020, the entire high-profile case had remained suppressed from the public until District Judge Patricia Herron undid her restriction on Nov. 20 when a Denver Post reporter asked about it. Turner was arraigned Tuesday.

In that time, no one could know what was in any of the 16 court orders Herron issued in the case during – including the order to suppress it – nor access any of the original documents or records that had been public when the case was filed in October 2019, such as why Turner was facing murder and a dozen other charges.

There was no hearing to discuss closing the case and Herron issued no written order suppressing the case.

The new rules by the Colorado Supreme Court change all that.

The rules would have required Herron to hold a hearing to close the case file, to give a specific reason for why she suppressed the case, and to set a timeline for reopening it to the public.

A judge’s order to suppress a case will now be public.

“As things (stood), there (was) no requirement whatsoever for a judge to prepare any findings, written or oral, to justify a denial of access to cour t records,” said First Amendment lawyer Steve Zansberg, who represents several news media outlets including The Denver Post. “With the adoption of the new rule … a judge is required to issue a written order which explains to the public why (s)he concludes … fairly rigorous standards have been met. To my mind, that is a huge difference.”

In October, the committee of attorneys and judges that evaluates state rules of criminal procedure finished nearly two years of closed-door meetings and discussions regarding suppressing cases and how to do it.

Earlier efforts to improve public access to cour t records had stalled, but committee members said it was the Post’s investigation that revived the discussion. Coats, who retires Jan. 22, had requested the committee to review the matter anew.

In a public Zoom hearing on Oct. 13, the committee offered up pages of new rules to the Supreme Court.

Fourth Judicial District Judge Deborah Grohs chaired the 14-member committee and told the justices the problem was obvious.

“There really was no guidance for trial judges for when we should do this, how we should do it, what the restrictions are or any standard,” she said during the hearing. “We were hearing about judges across the state who were suppressing entire files without making any ruling whatsoever, or were keeping cour t files, par ticularly high-profile cases, in their chambers so nobody could get access to them.”

Colorado Cour t of Appeals Judge John Dailey, also a member of the committee, told the justices the committee was surprised to learn the extent of the problem.

“We discovered there are scads of cases out there of which information is being closed of f to the public – information about entire case files – for an indefinite period of time, with little or no justification given for closing of f these files,” Dailey said.

The rules, however, won’t allow for the public to listen in on a hearing to suppress a case.

“There are certain things that are sensitive to the case and sensitive to safety concerns and fair trial,” Grohs told the justices.

“We know the right to access is impor tant, and we understand the First Amendment. There are many other concerns that are equally as important and sometimes it has to weigh in favor of keeping these things private.”

Despite The Post’s stories, dozens of criminal cases have remained suppressed while they are active, frequently opened to the public only after plea bargains are made and sentences handed down.

Among them were the felony cases against three people tied to the gang-shooting death of Andrew Graham, killed as he walked home from a Centennial light-rail station in November 2009.

The cases were suppressed by Herron in 2017 and remained that way for three years.

With the cases suppressed from the public, all three defendants – Allen Ford, Joseph Martin and Clarissa Lockhar t – made plea deals with prosecutors that resulted in first-degree murder charges being dropped against them. Charges against a fourth defendant were dismissed.

Ford pleaded guilty in November 2019 to a racketeering charge and was sentenced in Januar y

2020 to 20 years in prison; Martin had pleaded guilty in 2018 to a pair of felonies tied to Graham’s killing including aggravated robbery and was sentenced to 10 years in prison; Lockhart pleaded guilty in February 2020 to a racketeering charge and was sentenced to 10 years.

The cases were finally unsuppressed in April 2020 by 18th Judicial District Judge Michael Spear, a month after alleged triggerman Terrell Jones, 27, was arrested and charged with Graham’s murder. Jones was 16 at the time of the shooting.

Denver Post repor ter Shelly Bradbury contributed to this repor t.