Editorial: ‘Shrouded Justice’ Uncovers Court Secrecy in Need of Reform
A frightening black hole of judicial secrecy exists in Colorado. If not for an experienced investigative journalist given the time and resources to chase the story — not just a sound bite — it might never have come to light.
Most people wouldn’t even notice that a murder case was missing from the public court records, but The Denver Post’s David Migoya did. That set off his journalistic alarm bells. After nine months of research, his “Shrouded justice” stories revealed a widespread practice of case suppression that should terrify anyone who believes transparency is the most important check on government.
Judges suppressed thousands of criminal and civil cases removed in just the past few years. Typically, attorneys requested it, but sometimes judges acted on their own initiative. Once suppressed, only the lawyers and the parties to the case could find out anything about them, including when hearings would take place. The cases simply vanished from the public record.
“Someone could be arrested, charged, convicted and sentenced for a crime in Colorado without anyone outside of law enforcement ever knowing who, how, why or whether the process was fair,” Migoya concluded.
While judicial suppression is legal, it’s also mostly unregulated. Now that the State Supreme Court has ruled there is no presumption of access to judicial records, suppression is a very powerful tool to keep the public in the dark.
There are sometimes good reasons to suppress a case temporarily. For example, there might be an ongoing police investigation that could be compromised or victims’ families might be in danger during the trial. But there are bad reasons, too, such as protecting an elected official from embarrassment or simply to avoid media attention.
Suppressed cases aren’t to be confused with sealed cases, although Migoya found that even some prosecutors didn’t understand the difference. State laws and rules control when a judge may seal a case. Suppression lacks such clarity and is basically at the discretion of judges. Even after a conviction, a suppressed case might remain hidden for years or forever.
After Migoya’s story ran, The Denver Post became a forum for Coloradans to engage in a civic conversation about suppression.
Reader Bill Wright wrote, “The kind of secrecy implied in the article constitutes a serious threat to the credibility of Colorado’s system of justice.” He added, “While there are undoubtedly good reasons for sealing court records these should at least be generally noted in the public record and subject to regular review.”
Reader Mary Monogue wrote, “You’ve restored my faith in journalists. Your article is well-written and timely and just-ever-so wonderful.”
And during an AMA (Ask Me Anything) with Migoya, Twitter user @artistinaspen tweeted “Brilliant investigative reporting. This is quite frankly scary.”
At least one judicial district has already promised change. Prosecutors in Arapahoe, Douglas, Elbert and Lincoln counties — the 18th Judicial District under District Attorney George Brauchler — said they had no idea so many cases were suppressed and are implementing better review of when they request it.
Other prosecutors around the state should follow Brauchler’s lead. Better, lawmakers should intervene by passing clear rules for judicial suppression and for lifting suppression after resolution of a case.
Usually, the courts serve as the check and balance on the legislative branch by blocking unconstitutional laws. But checks and balances go both ways.
— The Denver Post