The issue: Group may make court proceedings opaque.
What we think: Criminal cases must be open to the public.
Tell us what you think: Send us an email at email@example.com.
A Colorado judicial branch committee wants to make it harder for you, the public, and we, the press, to access criminal court records.
The 14-member Rules of Criminal Procedure Committee met in mid-January to discuss a long-awaited draft rule that would change how and when courts are allowed to suppress and seal criminal court records. While the draft, posted online here [tinyurl.com/ukm6dul] doesn’t clarify what could be hidden from the public, it does lay out four guidelines by which a judge may rule a record sealed.
Specifically, the judge must decide there is: a compelling interest, a significant interest, a substantial interest or an overriding interest “that would be served by making the court record inaccessible to the public or by allowing only a redacted copy of it to be accessible to the public.” The written court order describing the qualifying interest would also have to explain how there is a high risk of harm and find that there are no less restrictive means of protecting an indentified interest than refusing to release or redacting the record.
Precisely how will that call be made? Well, suffice it to say the draft proposal is vague.
Here’s where things get outrageous: Under the rule, before a document can be quashed from public view, the sealing request has to go before the courts for a public hearing. The problem is that that hearing must, as per the rule, take place behind closed doors.
Thus, the public is effectively barred from the legal process, from the publicly funded building for which their taxes have paid, from the ability to monitor the rulings of judges for whom they vote, from the right to evaluate the actions of the public defenders and prosecutors whose salaries they pay.
Furthermore, the rule, as currently drafted, allows the judge to determine how long an order limiting public access to a court record or any part thereof remains in effect. That means if a judge doesn’t want to make a case publicly accessible through open records laws or attendance, it’s sign, seal, quash and move on.
That’s a massive problem.
Criminal court cases must be kept in the light. It’s so important that the framers of our government saw fit to codify it in the Bill of Rights. Look up the 6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed. …”
Read it again — a public trial.
Granted, there are times when pre-trial publicity may make an impartial jury of peers difficult to find, and yes, everyone has the right to a fair trial. And presumably there’s a reason if a judge determines some records egregiously damage the trial, and that they must be sealed.
But to mandate that the hearing related to that judgment be made behind closed doors does a disservice to a critical public process.
Criminal cases, including all the hearings related to them, must be kept open. This is how the public ensures justice is properly served and holds the courts accountable. To deny the constituents that right is to undermine the foundation of our legal system and to set dangerous precedent — an extraordinary irony for a court system designed to make sure that dangerous precedents are not established.