SUPREME COURT, STATE OF COLORADO 2 East 14th Avenue Denver, CO 80203

____________________________________________

Arapahoe County District Court Honorable Gerald J. Rafferty, District Judge Case No. 06CR705 In Re: People of The State of Colorado, Respondent, vs. Sir Mario Owens, Petitioner.
For Petitioner: JAMES A. CASTLE, #14026 1544 Race Street Denver, CO 80206 Telephone: (303) 675-0500 Email: JCastlelaw@aol.com JENNIFER L. GEDDE, #32163 Jennifer L. Gedde, LLC Attorney at Law 1600 Broadway, Suite 1525 Denver, CO 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: jennifer@geddelaw.com C. KEITH POPE, #18955 2235 Broadway Boulder, Colorado 80302 Phone: (303) 443-7307 Facsimile: (303) 449-2656 E-mail: Keith@boulderdefender.com JONATHAN D. REPPUCCI, #30069 Reppucci Law Firm, P.C. 1544 Race Street Denver, Colorado 80204 Phone: (303) 333-5166 Facsimile: (303) 321-7781 E-mail: j.repucci@comcast.net

COURT USE ONLY

Case No.13SA____

PETITION FOR ORIGINAL PROCEEDING AND ISSUANCE OF RULE TO SHOW CAUSE UNDER C.A.R. 21

CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: 1. 2. The brief complies with C.A.R. 28(g). It contains 8,707 words. C.A.R. 28(k) is not applicable to this brief.

/s James A. Castle ________________________ James A. Castle

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TABLE OF CONTENTS TABLE OF AUTHORITIES.....................................................................................v ISSUE PRESENTED ................................................................................................1 PARTIES...................................................................................................................1 RULINGS COMPLAINED OF & RELIEF SOUGHT.............................................3 JURISDICTION ........................................................................................................4 REASONS FOR EXERCISING ORIGINAL JURISDICTION...............................5 FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED ...........19 LEGAL ARGUMENT ............................................................................................26 I. The district court has erred as a matter of constitutional law, and therefore abused its discretion, by continuing to deny public access to the official court records and transcripts, without complying with the mandatory procedural and substantive requirements for sealing the record from the public. ........................27 A. Governing law............................................................................................27 1. Both Mr. Owens and the public have constitutional rights to public access to these proceedings and standing to assert these rights. .............27 2. A presumption of openness exists, which can only be overcome by strict adherence to procedural and substantive constitutional requirements. ...........................................................................................31 B. Application to this case ..............................................................................32 1. The rulings complained of disregard constitutional requirements and are deficient in many regards. .................................................................32
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CONCLUSION .......................................................................................................38 LIST OF SUPPORTING DOCUMENTS ...............................................................40 CERTIFICATE OF SERVICE................................................................................43

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TABLE OF AUTHORITIES Cases Barron v. Florida Freedom Newspapers Inc., 531 So.2d 113 (Fla. 1988)...............30 Buckley v. Vallejo, 424 U.S. 1 (1976) ....................................................................18 CBS, Inc. v. United States District Court, 765 F.2d 823 (9th Cir. 1985)....28, 30, 38 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)..........................................35 Craig v. Harney, 331 U.S. 367 (1947).....................................................................35 Elrod v. Burns, 427 U.S. 347 (1976).........................................................................8 Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ...................................................10 Gardner v. Florida, 430 U.S. 349 (1977).................................................................26 Gitlow v. New York, 268 U.S. 652 (1925) .............................................................27 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ...................... passim In re Charlotte Observer (Div. of Knight Pub. Co), 882 F.2d 850 (4th Cir. 1989) .31, 32, 37 In re Oliver, 333 U.S. 257 (1948)......................................................................27, 28 In re People v. Ray, 252 P.3d 1042 (Colo. 2011).passim In re the Matter of P.R. v. Dist. Ct., 637 P.2d 346 (Colo. 1981).........................6, 11 Jones v. District Court, 780 P.2d 526 (Colo. 1989) ................................................35 Mills v. Alabama, 384 U.S. 214 (1966) ..................................................................29 Nebraska Press Assn v. Stuart, 423 U.S. 1327 (1975).............................................8 People v. Bryant, 94 P.3d 624 (Colo. 2004).................................................... passim People v. Dunlap, 975 P.2d 723 (Colo. 1999)...........................................................9 People v. Germany, 674 P.2d 345 (Colo.1983).......................................................10 People v. Lopez, 148 P.2d 121 (Colo. 2006).............................................................5 People v. Montour, 157 P.3d 489 (Colo. 2007).........................................................9 People v. Sigg, 13SA21 (Colo. 2013) ...................................................................5, 9 People v. Thompson, 181 P.3d 1143 (Colo. 2008) ...................................................5 Phoenix Newspapers Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940 (9th Cir. 1998).......................................................................................................30 Phoenix Newspapers Inc., 156 F.3d at 947-98........................................................31 Presley v. Georgia, 558 U.S. 209 (2010).....................................................27, 28, 33 Press-Enter. Co. v. Superior Court, 464 U.S. 501 (1984) .................................10, 29 Press-Enter. Co. v. Superior Court, 478 U.S. 1 (1986) .................................. passim Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)....................... passim
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Shepard v. Maxwell, 384 U.S. 333 (1966) ..............................................................10 Star Journal Publg Corp. v. County Ct., 591 P.2d 1028 (Colo. 1979) ...........6, 7, 33 Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002) ................7, 29 Trop v. Dulles, 356 U.S. 86 (1958 ..........................................................................39 United States v. Rivera, 682 F.3d 1223 (9th Cir. 2012) ...........................................28 United States v. Simone, 14 F.3d 833 (3rd Cir. 1994) .............................................30 Waller v. Georgia, 467 U.S. 39 (1984)..............................................................27, 28 Wellons v. Hall, 558 U.S. 220 (2010) .......................................................................9 Statutes Section 16-12-205(1).................................................................................................1 Other Authorities L. Brandeis, Other People's Money 62 (National Home Library Foundation ed. 1933) ....................................................................................................................17 Rules C.A.R. 12(b) ..............................................................................................................1 C.A.R. 21...........................................................................................................5, 7, 8 Crim. P. 32.2(b)(3)(I). ...............................................................................................1 Constitutional Provisions COLO. CONST., art. II, 3 ....................................................................................23 COLO. CONST., art. II, 6 ........................................................................23, 27, 30 COLO. CONST., art. II, 10 .......................................................................... passim COLO. CONST., art. II, 16 .......................................................................... passim COLO. CONST., art. II, 20 ............................................................................23, 27 COLO. CONST., art. II, 25 .......................................................................... passim COLO. CONST., art. VI, 2.....................................................................................4 COLO. CONST., art. VI, 3.....................................................................................4 U.S. Const. amend. I........................................................................................ passim U.S. Const. amend. VI..................................................................................... passim U.S. Const. amend. VIII ........................................................................ 23, 26-27, 39 U.S. Const. amend. XIV....................................................................................23, 27
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ISSUE PRESENTED Whether the district court has erred as a matter of law, and therefore abused its discretion, by continuing to deny public access to the official record, including the register of actions, all transcripts, any witness names, and a non-redacted court file, without complying with mandatory procedural and substantive requirements for closing the proceedings and sealing the record? PARTIES PETITIONER: Sir Mario Owens1 Sterling Correctional Facility P.O. Box 6000 Sterling, CO 80751

ATTORNEYS FOR PETITIONER SIR MARIO OWENS: POST CONVICTION COUNSEL: James A. Castle Castle & Castle, P.C. 1544 Race St. Denver, Colorado 80206 Phone: (303) 675-0500
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Jennifer L. Gedde Jennifer L. Gedde, LLC, Atty at Law 1600 Broadway, Suite 1525 Denver, Colorado 80202 Phone: (303) 830-2190

Petitioner Owens is indigent. Undersigned counsel represent him as courtappointed postconviction counsel through the OADC, pursuant to section 16-12205(1) and Crim. P. 32.2(b)(3)(I). (Appendix 1: December 19, 2008, Minute Order indicating Finding of Indigence and Order of Appointment). Petitioner seeks to proceed in forma pauperis as authorized by C.A.R. 12(b).
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Facsimile: (303) 329-5500 Jcastlelaw@aol.com C. Keith Pope 2235 Broadway Boulder, Colorado 80302 Phone: (303) 443-7307 Facsimile: (303) 449-2656 Keith@boulderdefender.com

Facsimile: (303) 830-1466 Jennifer@geddelaw.com Jonathan D. Reppucci Reppucci Law Firm, P.C. 1544 Race St. Denver, Colorado 80206 Phone: (303) 333-5166 Facsimile: (303) 321-7781 j.reppucci@comcast.net

ATTORNEYS FOR RESPONDENT, THE PEOPLE OF THE STATE OF COLORADO: George Brauchler, District Attorney John Hower, Chief Deputy DA Ann Tomsic, Chief Deputy DA Emily Warren, Chief Deputy DA 7305 S. Potomac Centennial, CO 80112 Phone: (303) 874-8500 Facsimile: (303) 874-8501 gbrauchler@da18.state.co.us jhower@da18.state.co.us atomsic@da18.state.co.us ewarren@da18.state.co.us Daniel Edwards Colorado Attorney Generals Office 1525 Sherman St., 7th Floor Denver, CO 80203 Phone: (303) 866-5760 Facsimile: (303) 866-5691

ARAPAHOE COUNTY DISTRICT COURT The Honorable Judge Gerald J. Rafferty Arapahoe District Court 7325 S. Potomac St. Centennial, CO 80112 Phone: (303) 649-6355 Facsimile (Court Clerks Office): (303) 649-6185

RULINGS COMPLAINED OF & RELIEF SOUGHT The ruling complained of is the district courts recent summary denial of Petitioners motion to vacate the courts longstanding and extremely restrictive sealing and redaction orders that have been in place since 2007.2 These orders preclude all public access to the register of actions, any transcripts, the identity and sworn testimony of any witness, or a complete, non-redacted court file. These orders do not authorize Mr. Owens or his attorneys to publish or disseminate any transcripts or non-redacted pleadings to members of the public, including family members, the press, and/or any other interested or concerned citizen. The public includes Mr. Owens family members, loved ones, and friends, the press, legislators, religious leaders, family members of the victims, interested or concerned members of society, and those individuals who, upon learning of the allegations, may come forward with evidence favorable to Mr. Owens. The district courts refusal to vacate its sealing and redaction orders ensures for all practical purposes that the official record and transcripts of these capital

The precipitating Motion to Vacate Redaction and Sealing Orders (SOPC-157) is attached as Appendix 2. Because the court denied SOPC-157 in related rulings on different dates and because those rulings derive from a series of earlier orders, these rulings and order are discussed in greater detail in the Facts Necessary to Understand the Issues section, infra.
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proceedings will remain closed and sealed from public inspection, and thus public scrutiny, for many years to come, resulting in irreparable constitutional harm and the erosion of public confidence in the integrity of the criminal justice system. Therefore, Mr. Owens asks the Court to exercise jurisdiction to review the courts ruling and to set it aside as unconstitutional. He further seeks a writ in the nature of mandamus or prohibition directing the district court to vacate its sealing orders and to grant public access to the official court record, the register of action, all transcripts, witness names, and non-redacted pleadings, unless or until the court enters appropriate findings, based on evidence received, consistent with statutory and/or constitutional standards.3 JURISDICTION Section 3 of Article VI of the Colorado Constitution confers on this Court the original power to issue remedial writs. This Court also has general

superintending control over the lower courts pursuant to section 2 of Article VI of the Colorado Constitution.

Mr. Owens has not sought below and does not seek here to reverse or vacate the courts long-standing orders regarding the addresses of protected witnesses. That is unnecessary as a practical matter because the non-redacted court file, the register of actions, and the transcripts do not include any protected witness address information.
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REASONS FOR EXERCISING ORIGINAL JURISDICTION Relief under C.A.R. 21 is extraordinary in nature and lies entirely within the Courts discretion. The Court may exercise its original jurisdiction when a trial court has exceeded its jurisdiction or abused its discretion and a remedy on appeal would be inadequate, see, e.g., People v. Thompson, 181 P.3d 1143, 1145 (Colo. 2008), or insufficiently expeditious to address a matter of great public importance. See People v. Lopez, 148 P.2d 121, 123 (Colo. 2006). The Court has frequently exercised its original jurisdiction to address public access to court documents and sealing of portions of the court record. See

Thompson, 181 P.3d at 1144-45 (ordering the unsealing of a criminal indictment disclosing information not necessarily admissible at trial); People v. Bryant, 94 P.3d 624 (Colo. 2004) (addressing issues of prior restraint pertaining to the release of transcripts in a criminal case); People v. Sigg, 13SA21 (Colo. 2013) (addressing and vacating district courts order closing a preliminary hearing where the court failed to making specific findings required by constitutional law)

(attached as Appendix 3);4 In re the Matter of P.R. v. Dist. Ct., 637 P.2d 346, 353 (Colo. 1981) (addressing the constitutionality of the courts total closure of the evidentiary phase of the contempt hearing, without a finding of compelling necessity); Star Journal Publg Corp. v. County Ct., 591 P.2d 1028 (Colo. 1979) (addressing constitutionality of order closing a preliminary hearing from the media, even though the order had expired). Mr. Owens stands accused and convicted of a crime that elicited intense public interest and media coverage; a factor common to all Colorado capital cases. But now, eight years after the murders in this case and five years after a jury sentenced Owens to die by lethal injection, the public still does not have any access to the official record, any transcripts, witnesses names, or even the register of actions. Mr. Owens has been asserting his rights to a public trial and to public access to the official, non-redacted record and transcripts for nearly a year. His family, as public citizens, has also sought access to and disclosure of these items. mother, His

, has pleaded with the district judge on behalf of the entire

Owens family for access:

4

The Sigg decision is publically available on the website for Colorados Judicial Branch at http://www.courts.state.co.us/Media/Opinions.cfm.

Imagine being the mother and father, brother, or sister of someone on death row and having no real access to any of the papers or transcripts that show why hes on death row. Thats whats happening with our family. Its a kind of torture and helplessness I cant describe As a parent I ask and beg you to allow Marios family to see the papers and transcripts that explain why our son is on death row. That is fair and right, and just and I believe you are a fair and just man. See 7/1/12 Letter from attached as Appendix 4, pp. 3-4.

The district judge has summarily denied these requests, even though public access to criminal trials is essential to the proper functioning of the criminal justice system. See Press-Enter. Co. v. Superior Court, 478 U.S. 1, 11-12 (1986) (Press-Enter.II); see also Star Journal Publg Corp., 591 P.2d at 1029-1030 (constitutional public trial guarantee serves to ensure efficiency, competency, and integrity in the operation of the judicial system.). The courts sealing orders and its refusal to vacate them are unprecedented. They collide head-on with basic statutory and constitutional protections and values. They threaten to violate many of Mr. Owens core substantive and procedural rights as well as the publics First Amendment and article II, section 10 right of access, which is one of the essential qualities of a court of justice. See

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566 (1980) (internal quotation marks and citation omitted); see also Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1051 & n.11 (Colo. 2002) (the First Amendment and

article II, section 10 protect the publics right to gather, distribute and receive information). Because the Owens family and other members of the public are not parties to the proceedings below, they have no other mechanism other than C.A.R. 21 to challenge the courts determinations. Yet they, like Mr. Owens, will suffer

continuing harm and irreparable damage with each passing day. See Nebraska Press Assn v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, Circuit Justice); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) ([t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.). Thus, unless this Court exercises its original jurisdiction, the public interest will be irrevocably damaged. Id. The importance of the rights and interests at stake and the inability to vindicate those rights effectively in the future make this petition particularly appropriate for mandamus review under C.A.R. 21. This is especially true given that this Court has already assumed original jurisdiction and stayed the underlying post-conviction proceedings based on other important legal issues,5 such that extending that jurisdiction to review the issue presented here is unlikely to delay
5

On April 18, 2013, this Court issued an Order and Rule to Show Cause and stayed the district court proceedings in 06CR705. See In re People v. Owens, 2013SA91.

matters.6 It would be difficult to imagine another set of rights that our society holds in comparably high regard, and for which the injury inflicted by an erroneous judgment would be similarly incurable upon delayed review. Limitations on a defendants public trial rights and the publics right of access in criminal cases necessarily implicate a substantial public interest. The core constitutional rights and the public and societal interests at stake are values of a high order deeply rooted in Americas constitutional tradition and its morality and values, dating back to the Declaration of Independence. These rights and interests carry even more weight in a death penalty case where, from beginning to end, judicial proceedings must be conducted with dignity and respect. Wellons v. Hall, 558 U.S. 220 (2010); cf. People v. Dunlap, 975 P.2d 723, 765 (Colo. 1999) (the public interest demands that the criminal proceedings of a person facing death be fundamentally fair); People v. Montour, 157 P.3d 489, 493 (Colo. 2007) (same). Until this case, there had been an unbroken tradition of openness in criminal trials. Bryant, 94 P.3d at 633 n.7 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 601 (1982)). Openness enhances both the basic
6

The Court recently resolved a very similar and similarly straightforward issue in Sigg, 13SA21, under C.A.R. 21 within the span of a month.

fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Press-Enter.II, 478 U.S. at 7 (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510-11 (1984) (Press-Enter.I). An open and transparent process is necessary not only to protect the innocent from an unjust conviction but, of equal importance, to preserve the integrity of society itself by keeping sound and wholesome the process by which it visits its condemnation on a wrongdoer. Cf. People v. Germany, 674 P.2d 345, 349 (Colo.1983); Crim. P.

32.2(a) (establishing a fair and just procedure for post-conviction review in capital cases). Secret criminal proceedings and trials, by contrast, have a corrosive effect on the fair administration of justice. Secrecy is profoundly inimical to the demonstration of the fairness of the law to our citizens. Richmond Newspapers, 448 U.S. at 579; Shepard v. Maxwell, 384 U.S. 333, 349 (1966) (justice cannot survive behind walls of silence). [N]ot even the Court of Star Chamber, the name of which has been linked with secrecy, conducted hearings in private. Gannett Co. v. DePasquale, 443 U.S. 368, 420 (1979) (J. Blackmun, concurring). As the Supreme Court of the United States has made clear: Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Public access is essential, therefore, if trial adjudication is to achieve
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the objective of maintaining public confidence in the administration of justice. Richmond Newspapers, 448 U.S. at 579; see also In re the Matter of P.R., 637 P.2d at 353 (Secret hearings-though they be scrupulously fair in reality-are suspect by nature. Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the courts decision sealed from public view.) (Additional citation omitted). Absent a rule to show cause, our historic tradition of openness will be broken, and these capital proceedings will continue to proceed mostly in the dark, hidden from public inspection and scrutiny for years to come. By the time the district court unseals its record if ever this case may well have proceeded through the resolution of the unitary appeal. If that appeal does not result in relief, all state post-conviction proceedings may come to an end, leaving only federal habeas corpus proceedings to remain. Transparency and public access will have little or no utility then, given that Mr. Owens claims will likely have been exhausted or defaulted, making further evidentiary hearings or the future presentation of new evidence unlikely. Moreover, family members and other

interested or concerned public citizens may have passed away never having had the opportunity to see a single word of a single transcript or to gather and receive
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critical information relating to the case. Mr. Owens has a present and powerful need to publish the facts and circumstances surrounding his case, which include many demonstrable instances of (a) government misconduct, including withholding much favorable evidence, presenting false evidence, and destroying evidence, (b) other prosecutorial misconduct, and (c) conflicted and ineffective assistance of counsel. Although some may not wish these allegations and the supporting facts ever to see the light of day, Mr. Owens has an overriding need to declare publically and prove that he was wrongfully convicted and to maintain his innocence. Further delay or restraint in the expression of Mr. Owens rights is unjustified. The need for public access has increased even further in recent months and weeks due to high profile and extraordinary developments that have put the future of Colorados death penalty and its death row inmates, including Mr. Owens, at the center of an ongoing statewide political discussion and public debate. That Mr. Owens landed in the center of this debate is not attributable to any decision he or his attorneys made, but rather to public events beyond their control. During the past legislative session, the General Assembly introduced a bill to repeal the death penalty. See HB 13-1264, attached as Appendix 5. State House Representative the mother of one of the victims in this case who is

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now a prominent politician, and thus a public figure was outspoken in her opposition to the bill. Representative quickly introduced HB 13-1270, a

separate measure that would have put death penalty repeal directly to the voters next year rather than to their elected representatives. See HB 13-1270, attached as Appendix 6. She alone sponsored the bill, stating publically, The citizens should weigh in on this I don't personally believe this is up to lawmakers to decide." See The Denver Post, 3/19/13, Testimony on death penalty repeal in Colorado House panel, attached as Appendix 7; see also The Denver Post, 3/19/13, After 9 hours of testimony, Colorado House panel delays death penalty vote (attached as Appendix 8). Representative , the sister of one of the victims and the daughter of and George Brauchler the elected District Attorney for the

Eighteenth Judicial District who is prosecuting Mr. Owens testified against the repeal efforts. District Attorney Brauchler testified disparagingly to the legislature about Mr. Owens attorneys and the post-conviction process in this case: We've heard testimony about the unified system and how it doesn't do anything to alleviate the cost but what you don't hear on the Sir Mario Owens and Robert Ray, and those are the cases going through it, what you haven't heard is that the defense in that case files 1400 page briefs, that they put the attorneys the Public Defenders from those cases on the stand to testify that they were ineffective and incompetent in those cases, that's what extends the life of those cases, that's what drives up the cost of them, it's not this system (referring to his District Attorney system).

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See House Judiciary HB 13-1264, Track 1, March 19, 2013 Testimony of George Brauchler, partial transcript attached as Appendix 9. HB 13-1264 failed in the days that followed. The Denver Post and other media outlets widely reported that Colorados governor John Hickenlooper had foreclosed passage of the bill by threatening to veto it, based on what he perceived to be the need for greater public understanding, contemplation, and discussion of the issues. See The Denver Post, 3/20/13, Hickenlooper Hints at veto of

lawmakers death penalty repeals, attached as Appendix 10; see also The Denver Post, 3/21/13, Hickenlooper veto comment on death penalty scrambles repeal effort, attached as Appendix 11; The Denver Post, 3/26/13 Colorado committee rejects death penalty repeal; sponsor blames Gov. Hickenlooper, attached as Appendix 12. Having worked to ensure the defeat of HB 13-1264, Representative subsequently withdrew her own measure. The Denver Post credited her heightened stature as having helped her kill a bill to repeal the death penalty. See The Denver Post, 3/27/13, Second Colorado death penalty bill dies at the sponsors request, attached as Appendix 13; see also The Denver Post, 5/9/13, Winners and Losers of the 2013 Colorado General Assembly, attached as Appendix 14; also available at http: /category/in-the-news/).

Then, just last month, Governor Hickenlooper issued an executive order

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granting Colorado death row inmate Nathan Dunlap a temporary reprieve.

See

Executive Order, D 2013-006 dated May 22, 2013, attached as Appendix 15. Therein, Governor Hickenlooper made some extraordinary findings: If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado's system for capital punishment is not flawless. Colorados death penalty is arbitrary, and has not been fairly or equitably imposed. It is a legitimate question whether we as a state should be taking lives. "The death penalty experiment has failed." 7 See Appendix 15, at 2-3. He then granted Mr. Dunlap a temporary reprieve rather than clemency - so that the citizens of Colorado could learn, discuss, and make their own informed decisions on the justness and fairness of the process by which Colorado seeks and carries out capital punishment. In so doing, he called for increased public discussion and debate: I think it is one thing for those of us, myself and some of the leaders of the legislatures to come out and say, alright weve decided, you know, heres all the information we have and were going to tell the State what is good for it. Thats old politics, and I know it works and its, you know, many people buy into that but I think that denies, if we had passed that bill and I had signed it, uh, two months ago, there are an awful lot
7

Quoting former Supreme Court of the United States Justice Harry A. Blackmun.
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of people in the State that would of become hardened without knowing any of the facts, they wouldn't hear all the explanations of whats wrong with the death penalty. . . . And part of that is making sure you respect them enough, the public, the voter, and give them real facts, and allow them to come to their own conclusions. I honestly think that as more Coloradoans, not all, but as more Coloradoans get the real facts around capital punishment, theyll say that doesnt make any sense why are we doing that. Why are we still doing it. See Channel 9 News: Raw: Governor Hickenlooper sitdown interview comments on decision to grant Nathan Dunlap "temp reprieve," 5/23/13, attached as Appendix 16. Thereafter, Governor Hickenlooper continued to speak publically about his decision and noted that the temporary reprieve seemed to be the right decision despite all the anger it would cause and also it seeds the conversation, it allows people to begin hearing what the real facts are. See Transcript, Colorado Public Radio, Colorado Matters, 5/29/2013, attached as Appendix 17. Ever since Governor Hickenlooper granted Mr. Dunlap a temporary reprieve, the public debate on the future of Colorados death penalty has been raging, front and center, across the state and local media spectrum. See, e.g., The Denver Post, 5/26/2013, If Colorado is to have this death penalty conversation, start here, attached as Appendix 18. Public Officials, such as Colorado Attorney

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General John Suthers and Representative

publically criticized the decision.

See 5/22/13, Attorney General Suthers Statement on Nathan Dunlap Clemency, attached as Appendix 19; see also blogs.denver.post.com/the spot, 5/23/13, saddened by Hickenloopers Dunlap decision, attached as Appendix 20, also available at saddened-by-nathan-dunlap-reprieve/. 8 Meanwhile, District Attorney Brauchler has lobbied publically for the death penalty in various public forums and continues to make public statements to the effect that his office does not seek the death penalty in 'whodunit' cases. See Appendix 18. As it turns out, this case is in fact an identity case, one with significant flaws and claims of innocence. Mr. Owens has raised and documented many significant post-conviction claims that implicate the fairness, reliability, and wholesomeness of the process by which he ended up on Colorados death row. These claims include serious and pervasive government misconduct, systemic problems in the public defenders office handling of conflicts of interest, substantial claims of ineffective assistance of counsel, and factual allegations striking at the heart of Though numerous media articles are provided as supporting documents, these items are non-exhaustive and just the tip of the iceberg in terms of media coverage spawned by these recent events.
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whether Mr. Owens is actually guilty of the crimes charged or deserving of death. But the public would never know any of this because many of the real facts can only be found in the official record and transcripts of the proceedings, and the rulings complained of deny public access to those materials. Stated

differently, the courts refusal to vacate its sealing and redaction orders, operates to deprive the public of any ability to actually verify or refute the questionable narrative espoused publically by District Attorney Brauchler and by other public officials and politicians. Sunlight is said to be the best disinfectant; electric light the most efficient policeman. Buckley v. Vallejo, 424 U.S. 1, 67 (1976) (citing L. Brandeis, Other People's Money 62 (National Home Library Foundation ed. 1933)). Without

access, the public cannot conduct its own investigation into what the real facts are. Without access, the public cannot gather and receive information that bears directly on the justness and the fairness of how Colorado imposes the death penalty in the name of its citizens generally or how specifically it has done so in this case. Without access, the public cannot fulfill its role to participate in and serve as a check upon the judicial process. Globe Newspaper, 457 U.S. at 605. The intense, ongoing public debate on the future of Colorados death penalty may well be over by the time the unitary appeal concludes in the years to come.

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Mr. Owens has a particular need for transparency and public access now, however, because one day his life may rest in the hands of a governor, who, while wrestling with a clemency petition, must take into account the views of an informed public. FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED Given prior and ongoing proceedings in Owens and Ray, the Court is familiar with some of alleged facts and circumstances underlying this case such that an extensive discussion is unnecessary, especially given that the issue presented here is mostly separate and distinct from the underlying facts and merits. The issue presented involves straightforward legal questions and the application of long and clearly established constitutional law. Few, if any, facts are necessary to understand the issues, apart from the background and procedural history that now follows. The district court, acting on its own motion, issued the first in a series of sealing and redaction orders on February 27, 2007. It ordered the parties to redact all pleadings in this case (06CR705) for all names and locations of all endorsed witnesses. See Order (SO) No. 5: Case Management Order, 1, attached as Appendix 21 (emphasis added). It designated the clerk of the court as the

custodian of the record and ordered that the Redacted copy is the public file and is

19

available for review by the public, counsel or other court personnel during normal business hours. Id. at 5, 7.9 On August 8, 2007, the court, again acting sua sponte, indicated that it had come to the courts attention that the names of witnesses are being recorded in the Registry of Action (ROA). See Consolidated Order No. Five, attached as Appendix 23. The court viewed this as potentially problematic because the ROA is accessible to the public, and the courts earlier order had required redaction of witnesses names because some of the witnesses are participating in the Witness Protection Program. Id. Therefore, the court suppressed until further order the registry of actions. Id. Later that month, the Denver Post made a request to a court reporter for access to transcripts of the proof-evident-presumption-great hearing. In response, the court and the parties addressed the issue in open court, but without notice to the Denver Post and, therefore, outside the presence of any Denver Post
9

To reiterate, PCC does not seek to expose or publish protected witness address information to the public. Unsealing the un-redacted court file to public inspection will not reveal protected witness addresses. The district court long ago issued protective orders preventing the disclosure of these witnesses' addresses. See In re People v. Ray, 252 P.3d 1042, 1045 (Colo. 2011). Those orders have continued throughout the post-conviction process. Id. As a result, pleadings such as endorsements did not include any witness location information. See, e.g., SO-2 attached as Appendix 22.

20

representatives.

See 8/24/2007, p.187-92, attached as Appendix 24.

The

prosecution objected to public access to transcripts or any other records, citing threats to the fairness of the proceedings, pending motions for change of venue based on pretrial publicity, and the safety of witnesses. Id. at 188-189. It argued that constitutional requirements are different than handing over in paper format the testimony of witnesses in advance of trial. Id. at 189. Attorneys for the codefendants Robert Ray and Perish Carter also objected to dissemination. Mr. Owens lawyers waited to take a position. Id. at 187-91. The court returned to the issue on August 28, 2007, but once again, no one from the Denver Post was notified or present. The court initially questioned whether it had the authority to deny the Denver Post access to that transcript. See 8/28/07, p.6, attached as Appendix 25. The prosecution argued, inter alia, that (a) the transcripts would constitute criminal justice records within the meaning of 24-72-301 et seq.; (b) their dissemination could be contrary to the public interest; (c) the record of a public hearing is a different animal than the right to a public trial; and (d) dissemination of the record or transcripts could jeopardize the defendants fair trial rights. Id. at 6-8. The prosecution had no objection to a court order precluding any transcripts from any media throughout the conclusion of these trials. Id. at 8 (emphasis supplied). Defense attorneys for each of the co-

21

defendants all objected to the dissemination of transcripts and urged the court to suppress them. Mr. Owens lawyers cited concern for his constitutional rights to due process and a fair and impartial jury, and argued that the court had authority to deny public access to the transcripts in order to ensure those rights. Id. at 9-10. Based on unanimity, which is rare, the court found that the transcripts were judicial records, meaning that they belong to the Court. Id. at 12. It stated that it had performed a balancing test between the defendant's right to a fair and impartial jury against the public's right to know and had concluded that the balance favored protecting the defendants due process rights for a fair and impartial jury. Id. at 13. It indicated its belief that section 24-72-305 authorized the court to determine whether or not disclosure would be contrary to the public interest, and found that the public interest requires that these requests for the transcripts be denied at this point in time. Id. It noted, however, that of course it was not denying the transcripts eternally at all, it is simply a postponement of the transcripts to be available to any media until such time as these trials are completed. Id. at 14 (emphasis added). It indicated that it would direct the chief reporter for this courthouse not to disclose any transcripts based on that order. Id. at 14-15. A written ruling followed. See Consolidated Order No. Six, 9/12/2007,

22

attached as Appendix 26. This ruling set forth courts reasoning in more detail and ordered, the transcripts in 2004CR1805, 2005CR2945, 2006CR697, 2006CR705, and 2006CR713 are SEALED until further order of court. This order does not apply to trial counsel and appellate counsel in these cases. Id.10 The court

mailed this order to the parties, but not to the Denver Post. See Appendix 26, Certificate of Mailing. These sealing and redaction orders remained in effect throughout the trial and long beyond. Then, on June 15, 2012, Mr. Owens moved the court to vacate and rescind its orders and for an evidentiary hearing. See SOPC-157, attached as Appendix 2. Therein, Mr. Owens argued that continuing the courts orders would not only violate his First, Sixth, Eighth and Fourteenth Amendment rights and the rights afforded him under article II, sections 3, 6, 10, 16, 20, and 25 and Colorados unitary review statues, but also would violate the publics First Amendment and article II, section 10 rights to access. SOPC-157 argued that the courts orders are contrary to the publics interest and fundamentally unfair. Id. at 11. The prosecution objected to SOPC-157, questioning whether the right to an
10

2004CR1805 and 2006CR697 filed against the co-defendant Robert Ray. 2006CR713 is a case filed against co-defendant Perish Carter. 2005CR2945 is a different criminal proceeding against Mr. Owens (the Lowry Park case). The district court was not the court presiding over either 2004CR1805 or 2005CR2945.
23

open trial extends to post-trial proceedings and arguing that witness protection issues justified continued sealing and redaction orders. See Peoples Response to SOPC-157, attached as Appendix 27. It cited In re People v. Ray, 252 P.3d 1047 (Colo. 2011) as further support for its position. Id. at 10, 14. Two days later, the court summarily denied SOPC-157 from the bench, without taking any evidence or making any findings, but subject to reconsideration as some point in time. See 6/28/2012, pp.14-15, attached as Appendix 28. The court subsequently received a letter dated July 1, 2012, from the mother of Sir Mario Owens. sent the letter on behalf of the begged and

entire Owens family. See Appendix 4. In that letter,

pleaded with the court to grant her and other family members access to the official records and pleadings. Id. at 3-4. The defense filed a reply in support of SOPC-157 (attached as Appendix 29), to which the prosecution filed a supplemental response. See Peoples

Supplemental Response to Defendants Reply to Peoples Response to Motion to Vacate Redaction and Sealing Orders, attached as Appendix 30. The court did not conduct a hearing concerning the Owens familys request for access to transcripts and non-redacted pleadings. It instead found that

24

lacked standing, denied the request by a minute order sent only to the parties, and sealed the letter until further order of the court. Minute Order (Attached as Appendix 31). rescinded but See Appendix 4. On July 26, 2012, PCC sought reconsideration and an evidentiary hearing. See Request for Hearing and Reconsideration of Redaction and Sealing Orders (SOPC-157 Supplement), attached as Appendix 32. The prosecution objected. See Peoples Objection to Defense Supplemental Request for Rehearing and Reconsideration of Redaction and Sealing Orders, attached as Appendix 33. On October 30, 2012, the court finally addressed the motion to reconsider SOPC-157 and allowed further argument. See 10/30/2012, pp.119-134, attached as Appendix 34. The court acknowledged that it had erred in concluding that did have standing as a member of the public to challenge its sealing orders, but did not reverse its order denying her any and all access. Id. at 129. And because transcripts on the streets concern me, the district judge denied Mr. Owens motion to reconsider and request for an evidentiary hearing: So I would maintain my position, no transcripts without a court order. And it's there, if someone wants the transcript, they can file a petition with me, I'll hopefully give it fair and due consideration and decide whether or not that transcript should be released.
25

See 7/23/2012

That sealing order has not been

provided a copy of her letter to undersigned counsel.

Id. at 132-133. The redaction and sealing orders remain in effect. They prohibit all public access the official record, transcripts, and register of actions. They required the parties to redact all witness names in all written pleadings. The prohibit Mr. Owens or his attorneys from publishing any of these materials to any member of the public including his own family. LEGAL ARGUMENT Mr. Owens was tried, convicted, and sentenced to death. Like all others sentenced to death, he is constitutionally entitled to painstaking review of his convictions and death sentences because, as the United States and Colorado Supreme Courts have often recognized, death is qualitatively different. See

Gardner v. Florida, 430 U.S. 349 (1977), and cases cited therein; Ray, 252 P.3d at 1049 (Death is a uniquely severe and irrevocable penalty, which requires the utmost scrutiny to the underlying verdict and sentence).

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I.

The district court has erred as a matter of constitutional law, and therefore abused its discretion, by continuing to deny public access to the official court records and transcripts, without complying with the mandatory procedural and substantive requirements for sealing the record from the public. A. Governing law 1. Both Mr. Owens and the public have constitutional rights to public access to these proceedings and standing to assert these rights.

The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness. Press-Enter.II, 478 U.S. at 7. Mr. Owens has personal and fundamental constitutional rights to a public trial and public access to his proceedings. These rights are guaranteed by the First and Sixth Amendments and extended to the States through the Due Process Clause of the Fourteenth Amendment. See Presley v. Georgia, 558 U.S. 209, 211-213 (2010); In re Oliver, 333 U.S. 257, 273 (1948); Gitlow v. New York, 268 U.S. 652, 664 (1925); see also COLO. CONST., art. II, 6, 10, 16, 25. The right to a public trial is unmistakably for the benefit of the accused. Presley, 558 U.S. at 213 ([t]here could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit.); see also Waller v. Georgia, 467 U.S. 39, 46 (1984) (The requirement of a public trial

27

is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions... ) (quoting In re Oliver, 333 U.S. at 270, n.24). The right to a public trial encompasses more than just the trial itself it extends to those hearings whose subject matter involve[s] the values that the right to a public trial serves. United States v. Rivera, 682 F.3d 1223, 1228 (9th Cir. 2012) (public trial rights apply to sentencing proceedings). This right extends to includes post-conviction proceedings. See, e.g., CBS, Inc. v. United States District Court, 765 F.2d 823, 825 (9th Cir. 1985). Mr. Owens and the public also have First Amendment and article II, section 10 rights to public access to his criminal proceedings. [T]he extent to which the First and Sixth Amendment public trial rights are coextensive is an open question. Presley, 558 U.S. at 213. Nevertheless, precedents concerning the reach of the publics First Amendment right of access inform the scope of the defendants Sixth Amendment right to a public trial, because there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public. Waller, 467 U.S. at 46.

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The First Amendment guarantees the public and the press a qualified right of access to criminal proceedings and transcripts of those proceedings. See Press-Enter.II, 478 U.S. at 8-14 (preliminary hearings); Press-Enter.I, 464 U.S. at 510-11 (voir dire); Globe Newspaper, 457 U.S. at 603-11 (testimony of child victim of sex offense); Richmond Newspapers, 448 U.S. at 580-81(criminal trial). This right of access is premised on the common understanding that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. Globe Newspaper, 457 U.S. at 604 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). By guaranteeing that the individual citizen can effectively participate in and contribute to our republican system of selfgovernment, the First Amendment right of access ensures that this constitutionally protected discussion of governmental affairs is an informed one. Id. at 604-05 (citations omitted). The right of access is a right to gather and received information, not just a right to attend the proceedings. Richmond Newspapers, 448 U.S. at 573; see also Tattered Cover, Inc., 44 P.3d at 1051 & n.11; cf. Bryant, 94 P.3d at 628 (free discussion of public policy issues and criticism of public officials cannot be restrained.) The First Amendment right of access applies to both trial and post-

29

conviction proceedings. CBS, Inc., 765 F.2d at 825 (The primary justifications for access to criminal proceedings, first that criminal trials historically have been open to the press and to the public, and, second, that access to criminal trials plays a significant role in the functioning of the judicial process and the governmental system, apply with as much force to post-conviction proceedings as to the trial itself.); see also United States v. Simone, 14 F.3d 833, 835 (3rd Cir. 1994) (First Amendment right of access applies to post-trial hearings to investigate jurors misconduct); COLO. CONST, art. II, 6. (Courts of justice shall be open to every person,. . . The publics right to access extends to documents filed in a criminal case and to transcripts of the proceedings. See Press-Enter.II, 478 U.S. at 13-14; see also CBS, Inc., 765 F.2d at 825 (finding no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters.); Phoenix Newspapers Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947-98 (9th Cir. 1998) (transcripts of public trial proceedings must be released when the factors militating in favor of closure no longer exist). Both the public and news media have standing to challenge any closure order. See, e.g., Barron v. Florida Freedom Newspapers Inc., 531 So.2d 113, 188 (Fla. 1988).

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2.

A presumption of openness exists, which can only be overcome by strict adherence to procedural and substantive constitutional requirements.

Openness and public access to criminal proceedings are essential to the proper functioning of the criminal justice system. Press-Enter.II, 478 U.S. at 1112; Richmond Newspapers, 448 U.S. at 566, 579. Newspapers: People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case. Id. at 572. Therefore, a presumption of openness inheres in the very nature of a criminal trial under this Nations system of justice. Id. To insure stringent safeguarding of the constitutional rights at stake, courts considering closure of proceedings must give interested parties prior notice and an opportunity to be heard before deciding the issue, and must support any decision to close with reasons and findings of record, including why no less drastic alternatives to closure are feasible. See In re Charlotte Observer (Div. of Knight Pub. Co), 882 F.2d 850, 853 (4th Cir. 1989); see also Phoenix Newspapers Inc., 156 F.3d at 947-98 (if a court contemplates sealing a document or transcript, it must As stated in Richmond

31

provide sufficient notice to the public and press to afford them the opportunity to object or offer alternatives. If objections are made, a hearing on the objections must be held as soon as possible.) The party seeking closure must demonstrate a compelling need to abridge First Amendment rights. The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, narrowly tailored to serve that interest, and that less restrictive alternatives do not exist. Press-Enter.II, 478 U.S. at 9, 13-14. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Id. at 9-10. Where closure is wholly inefficacious to prevent a perceived harm, that alone suffices to make it constitutionally impermissible. See Globe Newspaper, 457 U.S. at 60910; see also In re Charlotte Observer, 882 F.2d at 855. B. Application to this case 1. The rulings complained of disregard constitutional requirements and are deficient in many regards.

Both the First and Sixth Amendment rights to public access and a public trial apply here, as does the presumption of openness. Therefore, the district courts

32

rulings prohibiting public access to the official record and transcripts cannot stand without specific, on the record findings, demonstrating that such closure is essential to preserve higher values and is narrowly tailored to serve that interest. Press Enterprise II, 478 at 13-14. Inherent in this standard are the requirements that evidence be presented and that the trial judge issue a written order setting forth specific factual findings. Star Journal Publg Corp., 591 P.2d at 1029-1030. Here, the district courts sealing and redaction orders clearly do not meet procedural or substantive requirements. All of the courts orders and perhaps most notably its order sealing all transcripts in the face of the Denver Posts specific request for access were entered without prior notice to the public and an opportunity to be heard. The court summarily denied SOPC-157, subsequent request for public access, and the motion to reconsider without articulating the higher value, making any findings, or considering any alternatives. The courts initial notion that did not have standing was wrong,

as the court itself eventually acknowledged. Denying and sealing request without notice to her or an opportunity to be heard exacerbated this error. The district court did not allow evidence to be presented. It did not explain why it was barring Mr. Owens from raising a constitutional right that is unmistakably for his benefit. See Presley, 558 U.S. at 213. It did not make

33

any specific findings indicating what harm it sought to prevent by refusing to vacate its orders. Not only did the district court neglect to make specific factual findings supporting its closure decision, the decision itself fails to satisfy substantive requirements. The court failed to make the required articulation of the compelling need or overriding interest at stake. Rather, it stated only that, transcripts on the streets concern me. See Appendix 34 at 132. From this statement, one can only assume that the courts objective is witness protection. The nature of the threat to witnesses is of the highest order. Ray, 252 P.3d at 1050. But the courts original orders sealing the transcripts were not even entered for witness protection purposes and were not intended to deprive the media of access to the transcripts forever, but rather were simply a prophylactic effort to ensure a fair trial. See Appendix 27. Even assuming for arguments sake that witness protection could trump public access and the public interest at this late but critical stage, the courts sealing and redaction orders are not narrowly tailored to preserve that value and are wholly inefficacious to prevent the perceived harm. This is especially true given that Mr. Owens was present when all the witnesses testified and has access to nonredacted pleadings and the transcripts. It is only the public that has no access, and

34

thus no ability to verify, what the real facts are. All of the witnesses in this case whether or not the prosecution had designated them as protected witnesses used their names and testified during this case on the public record in open court. The state made no effort to conceal witness names or their testimony during the pretrial or trial proceedings. District courts in Colorado are courts of record, see Jones v. District Court, 780 P.2d 526, 528 (Colo. 1989), and [A] trial is a public event. What transpires in the court room is public property.... There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. See Craig v. Harney, 331 U.S. 367, 374 (1947). Furthermore, privacy interests fade once they are a matter of public record. Bryant, 94 P.3d at 643 (Bender J., Martinez J, and Rice, J. dissenting) (citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 49495 (1975). The names of the witnesses in this case or the nature of their testimony were never meant to be kept a secret from the public. The trial was reported on in great detail both before and while it was occurring, including the media publishing the names of many of the protected witnesses. Information once revealed cannot thereafter be suppressed in an open and transparent system. See Bryant, 94 P.3d at

35

636 (it is absolutely essential to our analysis that these transcripts are still private. Reportage of their contents would make all matters contained therein public.) There is no compelling need or overriding interest in suppressing this information now. The state forever compromised its current position when it openly revealed the names of more than ten supposedly protected witnesses along with an explanation of their importance to the case in public pleadings filed in this Court. See 10SA341, Petition for Rule to Show Cause Pursuant to C.A.R. Rule 21, attached Appendix 35. This in turn led this Court, quite appropriately, to include those names in its published decision. See Ray, 252 P.3d at 1044-47 (publically identifying the names of numerous protected witnesses). It was never even contemplated or ever suggested in Ray that witness names as opposed to current addresses of protected witnesses would be suppressed from the public. Mr. Brauchlers office has also released sealed transcripts from this case based on a request from the press on a matter of politics. See Notice to the Court, DA-196-SO, attached as Appendix 36. Even if the district court were justified in thinking that suppression of the witness names and transcripts might be justified, a point undersigned counsel do not concede, the court was simply wrong in thinking that, as a practical matter,

36

closure could prevent that result because the genie was out of the bottle already. In re Charlotte Observer, 882 F.2d at 855. This alone suffices to make the courts sealing orders constitutionally impermissible. Id. (citing Globe Newspaper, 457 U.S. at 60910). The court did not adequately consider reasonable alternatives and has not narrowly tailored its orders. Indeed, there is no balancing or tailoring at all, but rather a blanket prohibition on public access to the official record and all transcripts. All witness names are redacted, even if such witnesses claimed no desire for protection or if the witnesses were public officials. The only publically available information is a public file, which is incomplete and, in reality, neither the real court file, nor the actual official court record. The public file contains heavily redacted pleadings and written orders, only. These documents are

frequently indecipherable or impenetrable due to extensive redactions, and the public file as a whole would be practically incomprehensible to any member of the public or the press. If the right of access is to be meaningful, a court has the duty to ensure that its records are accurate.... If public records cannot be compared with the sealed ones, all of the former are put in doubt. CBS, Inc., 765 F.2d at

37

826.11 The district court also did not narrowly tailor its ruling concerning the register of the actions. Because the register is sealed, the public has no way to access public databases to determine dates and locations for court appearances in the case or to access decisions of the court that occur outside of court proceedings and are rendered through the issuance of minute orders. In fact, this case does not even exist according to publically accessible databases. See Cocourts.com Search Results Sir Mario Owens, attached as Appendix 37. In summary, the rulings complained of cannot remotely withstand constitutional scrutiny. As such, this Court has a duty either to vacate the orders in their entirety or, at a minimum, narrow them as much as possible. Bryant, 94 P.3d at 637. CONCLUSION Independent public scrutiny-made possible by the public and media access plays a significant role in the proper functioning of capital punishment. An
11

In glaring contrast to this case, the public has unprecedented access to the parties pleadings and court orders in two other high profile cases, People v. Austin Sigg (murder of juvenile J.R.) and People vs. James Holmes (Aurora movie theater shootings) via the website for Colorados Judicial Branch. See: http://www.courts.state.co.us/Courts/District/Cases_of_Interest.cfm?District ID=1; http://www.courts.state.co.us/Courts/District/Cases_of_Interest.cfm?District_ID=1 8
38

informed public debate is critical in determining whether the death penalty comports with the evolving standards of decency which mark the progress of a maturing society.
12

Public scrutiny of a criminal trial enhances the quality and

safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Globe Newspaper, 457 U.S. at 606. The district court originally entered its orders with assurances that they would not last forever but rather were simply a postponement of the transcripts to be available to any media until such time as these trials are completed. See Appendices 25-26. Yet Mr. Owens capital trial ended five years ago, and still the public has no public access to the official record or transcripts. This state of affairs cannot endure any longer without irrevocably damaging this Nations and this States historic tradition of openness and transparency in criminal cases and without irreparably eroding public confidence in the integrity of the process. To deny original jurisdiction would be to unduly minimize the value of openness itself, a value that is threatened whenever access to criminal proceedings is denied. See Simone, 14 F.3d at 842 (citing Charlotte Observer, 882 F.2d at 856).

12

See Trop v. Dulles, 356 U.S. 86, 101 (1958).

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LIST OF SUPPORTING DOCUMENTS The supporting documents, which accompany this petition in a separately indexed set, are: Appendix 1: Appendix 2: Appendix 3: Appendix 4: Appendix 5: Appendix 6: Appendix 7: Appendix 8: Appendix 9: Appendix 10: Appendix 11: December 19, 2008, Minute Order indicating Finding of Indigence and Order of Appointment SOPC-157 People v. Sigg, 13SA21 (Colo. 2013) Letter from HB 13-1264 HB 13-1270 Testimony on death penalty repeal in Colorado House panel, The Denver Post, 3/19/2013 After 9 hours of testimony, Colorado House panel delays death penalty vote, The Denver Post, 3/19/2013 HB 13-1264, Track 1, March 19, 2013 Testimony of George Brauchler, Partial Transcript Hickenlooper Hints at veto of lawmakers death penalty repeals, The Denver Post, 3/20/2013 Hickenlooper veto comment on death penalty scrambles repeal effort, The Denver Post, 3/21/2013 to the district court

40

Appendix 12: Appendix 13: Appendix 14: Appendix 15: Appendix 16:

Colorado committee rejects death penalty repeal; sponsor blames Gov. Hickenlooper, The Denver Post, 3/26/2013 Second Colorado death penalty bill dies at the sponsors request, The Denver Post, 3/27/2013 Winners and Losers of the 2013 Colorado General Assembly, The Denver Post, 5/9/2013 Executive Order, D 2013-006, May 22, 2013 Channel 9 News: Raw: Governor Hickenlooper sitdown interview - comments on decision to grant Nathan Dunlap "temp reprieve," 5/23/2013 Colorado Public Radio, Colorado Matters, 5/29/2013 If Colorado is to have this death penalty conversation, start here, The Denver Post, 5/26/2013 Attorney General Suthers Statement on Nathan Dunlap Clemency saddened by Hickenloopers Dunlap decision, The Denver Post (blog), 5/23/2013 Order (SO) No. 5: Case Management Order, 1 SO-2 Consolidated Order No. Five Partial Transcript 8/24/2007 Partial Transcript 8/28/2007 Consolidated Order No. Six, 9/12/2007

Appendix 17: Appendix 18: Appendix 19: Appendix 20: Appendix 21: Appendix 22: Appendix 23: Appendix 24: Appendix 25: Appendix 26:

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Appendix 27: Appendix 28: Appendix 29: Appendix 30:

Peoples Response to SOPC-157 Partial Transcript 6/28/2012, Reply in support of SOPC-157 Peoples Supplemental Response to Defendants Reply to Peoples Response to Motion to Vacate Redaction and Sealing Orders 7/23/2012 Minute Order Request for Hearing and Reconsideration of Redaction and Sealing Orders (SOPC-157 Supplement) Peoples Objection to Defense Supplemental Request for Rehearing and Reconsideration of Redaction and Sealing Orders Partial Transcript 10/30/2012, pp.119-134 10SA341, Petition for Rule to Show Cause Pursuant to C.A.R. Rule 21 Notice to the Court, DA-196-SO Cocourts.com Search Results Sir Mario Owens

Appendix 31: Appendix 32: Appendix 33:

Appendix 34: Appendix 35: Appendix 36: Appendix 37:

WHEREFORE, Petitioner Sir Mario Owens, through his post-conviction counsel, respectfully seeks a rule to show cause why the district courts sealing and redaction orders (except for protected witness addresses) should not be rescinded.

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Respectfully submitted this 21st day of June 2013. __________________________ James A. Castle, No. 14026 Jennifer L. Gedde, No. 32163 C. Keith Pope, No. 18955 Jonathan Reppucci, No. 30069 Post-conviction Counsel for Petitioner Sir Mario Owens

CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June 2013, a true and correct copy of the foregoing PETITION FOR ORIGINAL PROCEEDING AND ISSUANCE OF RULE TO SHOW CAUSE UNDER C.A.R. 21 was properly served via U.S. Mail, postage prepaid, or as indicated, on the following: THE HONORABLE JUDGE GERALD RAFFERTY 18TH JUDICIAL DISTRICT 7325 S. POTOMAC STREET COURTROOM 407 CENTENNIAL, CO 80112 GEORGE BRAUCHLER JOHN HOWER ANN TOMSIC EMILY WARREN ARAPAHOE COUNTY DISTRICT ATTORNEYS OFFICE 6450 S. REVERE PKWY CENTENNIAL, CO 80111-6492 DANIEL EDWARDS ATTORNEY GENERALS OFFICE
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1525 SHERMAN STREET, 7TH FLOOR DENVER, CO 80203 Courtesy copy: INGRID DEFRANCO LAW OFFICE OF INGRID DEFRANCO Via E-mail: defrancoi@yahoo.com KEYONYU X. OCONNELL KEYONYU OCONNELL ATTORNEY AT LAW Via E-mail: keyonyu.oconnell@comcast.net MARK A. LARRANAGA Via E-mail: mark@jamlegal.com MARIA LIU COLLINS, LIU & LYONS, LLP Via E-mail: maria@nocolaw.com MARY CLAIRE MULLIGAN MULLIGAN & MULLIGAN, PLLC Via E-mail: mcmulligan@me.com CHRISTOPHER GEHRING Gehring Law Firm, LTD. Via E-mail: cgehring2011@gmail.com GAIL JOHNSON Via E-mail: gjohnson@johnson-brennan.com /s/ Gennifer Westhoff

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