Colo. judge upholds majority of sealing and gag orders in Aurora movie theater shooting case

The judge presiding over the fatal Colorado movie theater shooting case granted the release of about three dozen relevant court documents on Monday, but kept many of the records under seal.

Arapahoe County District Court Judge William Sylvester ruled on the right of public access to the court records after more than 20 news organizations requested that he reconsider a broad sealing previously ordered in the case against James Holmes, the suspect accused of killing 12 people and wounding 58 in Aurora last month.

“While the Court is cognizant of the important role Media petitioners play in informing the public’s legitimate interest in knowing the actions taken by government officials responsible for the investigation, prosecution, and trial of Defendant, the Court also will not jeopardize the integrity of the process and the truth-seeking functions of our justice system by authorizing a premature release of records,” wrote Sylvester in his amended sealing order that found that the media had standing to challenge the sealing order.

His decision impedes the public from accessing relevant affidavits, subpoenas, warrants and other court documents that could likely explain the probable cause for Holmes’ prosecution in a criminal case that has received substantial national attention.

"We are disappointed that the affidavits of probable cause remain under seal at this time, but are hopeful that the Court will revisit that issue sometime in the not too distant future," said Steve Zansberg, the attorney representing the news agencies that challenged the initial sealing order, in a statement.

In Colorado, court records in criminal cases are subject to public access not only under constitutional and common law, but also under the state Criminal Justice Records Act. In reaching his decision, the judge primarily relied on this law's balancing test between public and private interests.

The court also upheld a contested gag order barring the University of Colorado, where the accused shooter was a graduate student, from disclosing information about the suspect. It found that records related to Holmes in possession of the university likely contain “privileged information” and therefore their “improper disclosure would have far-reaching and potentially irreparable consequences to this case.”

Although it suppressed most of the documents related to the criminal case, the court did allow for the release of the register of actions, akin to a docket, as well as various motions, responses and orders submitted by the prosecution, defense and third parties. As Sylvester mentioned in his order, the contents of many of the documents that are now unsealed have already been publicized or discussed openly in court.

Zansberg said he is pleased that the court considered the public's interest despite objections made by attorneys for both sides, who argued that the unsealing of court records would interfere with the ongoing investigation.

In a separate order also issued Monday, the court reiterated its previously established pretrial publicity instructions that require attorneys of record, law enforcement agencies and court personnel to follow the Colorado Rules of Professional Conduct, which governs the kinds of statements they can make outside of court to the public and to the news media.

The court denied the defense’s request to prohibit Zansberg, a prominent media lawyer not representing either the state or defense in the case, from speaking with the news media pursuant to the professional conduct code.

Related Reporters Committee resources:

· Colorado – Open Courts Compendium: C. Criminal trials

· Colorado – Open Courts Compendium: B. Pretrial proceedings

· Colorado – Open Courts Compendium: A. In general

· Colorado – Open Courts Compendium: B. Procedure for requesting access in criminal cases

· Colorado – Open Courts Compendium: A. Media standing to challenge closure