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The problem with claiming a 'witness safety' exception to the First Amendment
Protecting witnesses in murder trials is important. But so is the Bill of Rights.
Colorado representative Rhonda Fields' son, Javad Marshall-Fields, was shot before he could testify.
Colorado representative Rhonda Fields' son, Javad Marshall-Fields, was shot before he could testify. (AP Photo/Brennan Linsley)
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he concept of a public trial is at the heart of the Bill of Rights. It's right there in the Sixth Amendment, right next to the part about impartial juries. It's right there in the First Amendment, too, right there in the part about the freedom of the press.

And yet, our public trials are often not nearly as public as we think.

For instance, in Colorado, there's a remarkable case that is forcing judges to balance in an unprecedented way the constitutional rights of criminal defendants and media organizations with a much more practical right — the right of witnesses to be protected from violence before and after they testify against alleged murderers.

So far, to the chagrin of First Amendment advocates, the Colorado courts have sided with those witnesses (and prosecutors), blocking from public view the written record of a murder trial that concluded six years ago. Even today, as the post-trial phase of this case wends its way through the courts amid substantial allegations of prosecutorial misconduct, the courts have kept the record sealed. There is no legal precedent for such continuing secrecy, especially so long after a verdict. But the United States Supreme Court on Monday nevertheless refused to accept the case for review. The justices want no part of this mess, at least not now.

How this all came to be is not terribly complicated. A man named Sir Mario Owens was convicted in 2008 of murdering two people in Colorado in 2005. One of the victims, Javad Marshall-Fields, was at the time of his death a prosecution witness in a murder case against one of Owens' friends, a man named Robert Ray. At Owens' trial, prosecutors convinced jurors that Ray and Owens had agreed to murder Fields to prevent him from testifying against Ray. The murder of a witness in a murder case is an extraordinary event in a justice system that relies upon witnesses every day — and the death of Fields prompted an extraordinary response from Owens' trial judge.

At the start of Owens' trial, the judge reasonably ordered prosecutors and defense attorneys to redact all of the pleadings in the case so there was no public reference to the names or addresses of the witnesses. Later, the same judge expanded the order to seal documents to the entire register of actions. A gag order was imposed upon the lawyers. Members of the public, and of the media, still were free to attend the trial, but the written record of it was kept secret to protect the identity of witnesses. Even during and after the trial, prosecutors say, witnesses in this witness-murder trial were threatened by the defendant and his associates.

No one wants to leave witnesses unprotected. And judges all over the country routinely seal parts of criminal cases for one reason or another. But the trial judge was so intent on sealing the record in the Owens case that he inexcusably never gave media organizations the opportunity to argue against the sealing before it occurred. Over and over again, in fact, Owens' trial judge rejected arguments that such blanket secrecy was a form of impermissible "prior restraint" under well-settled First Amendment principles. Over and over, defense lawyers asked the court to embrace a compromise that would both protect witnesses and open the case record for public review. It hasn't happened yet. But there are signs it may happen soon.

Before and during Owens' trial, prosecutors and defense attorneys were aligned against the media. Prosecutors didn't want the information made public to protect witnesses. Owens' trial attorneys were content, in such a high-profile case, to prevent reporters from tainting potential jurors with lurid accounts of the alleged deal between Ray and Owens to silence a witness. And so it went. Owens was convicted of capital murder in 2008 and quickly sentenced to death. Ray also was convicted of murdering Fields and sentenced to death. By 2009, the two men were on Colorado's sparse death row, and their trials were over.

As the case began to wend its way up the state appellate ladder, Owens changed his tune. His new lawyers began to advocate for the public release of the trial record as they began to uncover what they assert is strong evidence of misconduct by Owens' prosecutors. For their part, state lawyers continue to assert that a heightened level of secrecy is necessary. "[W]itness safety has remained a major concern," they told a state judge earlier this month. "At least one witness has needed assistance relocating more than once. Even during court hearings, two witnesses have been threatened by this defendant, while on the witness stand."

Owens' lawyers argue that the Colorado courts have embraced, without any viable legal precedent, "an open-ended 'witness safety' exception to the First Amendment." They contend that the public interest in evaluating evidence of potential prosecutorial misconduct in this case, in a state toying with the idea of eliminating capital punishment altogether, outweighs any interest in keeping the record secret. Media attorneys, meanwhile, say it is absurd, and unconstitutional, for the courts to keep secret written information that was disclosed in open court during trial.

Think about this: The post-trial phase of one of the highest-profile murder cases in recent Colorado history is being conducted largely in secret. Under threat of contempt, no one involved in the case can talk about it publicly. No journalists or advocates can review the transcripts or court docket to make independent evaluations of the strengths or weaknesses of the evidence. No state lawmaker can search out the details to educate herself about the nature of capital punishment in Colorado, a topic of increased public debate over the past few years.

I haven't seen anything like this in my 17 years of covering high-profile criminal trials.

Next week, a Colorado judge will again consider a media request to unseal the record in his case. And you can bet that judge will ask first about the safety of the witnesses. The judge must determine, definitively, whether the alleged threats to those witnesses are recent and continuing. He must explain why less restrictive measures aren't legally justified. He must announce a standard that will dictate when the sealing orders are going to dissolve. All of these difficult choices should have been made long ago. Now that the state courts know that no guidance is coming from the justices in Washington, there is no excuse to wait any longer.

The good news is that there is a chance the judge won't have to do any of that. In court papers filed last week, Colorado prosecutors say they are amenable at last to a compromise that long ago should have been offered and accepted. Redact all witness names and location information, prosecutors have told the presiding judge, and then let the rest of the information out. This would continue to protect those witnesses while giving real meaning to the First Amendment (and Sixth Amendment) values at issue in this dispute. And it would allow sunshine finally to get into the nooks and crannies of this controversial case.

To paraphrase Supreme Court Justice Robert H. Jackson, the First Amendment is not a suicide pact. Nor is it an invitation to murder. But the constitutional right to a public trial includes the right to have the public have access to the written record of that trial. The time to enforce that right has come. The time to open this case to public review is here. The prosecutors, to their credit, finally have come around to a position that acknowledges the public's right to know. Was Owens convicted and sentenced unjustly? Did his prosecutors violate their oaths and the law? The First Amendment, and the Sixth Amendment, both were designed to answer those very questions. Perhaps at last they will.

Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

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