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- the clerks shall properly enter the title of each cause or matter instituted in said courts and the case number references to the various orders, rulings, judgements, papers, and other proceedings of the court in such cause or matter. Register of actions shall be prepared for each case or matter filed. All papers filed with the clerk, all process issued and returns made thereon, all costs, appearances, orders, verdicts and judgements shall be noted chronologically in the register of actions. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order of judgement of the court. 1. 2. 3. 4. 5. 6. 7. 8. Motion for Access to and preservation of crime scene Order regarding motion for access to and preservation of crime scene Motion to limit pre-trial publicity Order Re: motion to limit pre-trail publicity Amended order re motion to limit pre-trial publicity Motion to preserve and produce evidence Objection to expanded media coverage and request for heaing Notice of invocation of all statutory and constitutional rights and privileges and revocation of any and all previously given waivers of privilege 9. Motion to allow confidential defense experts to be present for scientific testing of evidence 10. Interim order to respond to motion to allow confidential defense experts to be present for scientific testing of evidence 11. People’s response to defendant’s motion to allow confidential defense eperts to be present for all scientific testing of evidence 12. Objection to expanded media coverage and request for hearing (7.30.12 hearing) 13. Requests for expanded media coverage for 7.30.12 hearing 14. Motion for compliance with order limiting pre-trial publicity 15. Order re motion for compliance with order limiting pre-trial publicity motion to allow defendant to sit at counsel table 16. Order re: motion to allow defendant to sit at counsel table 17. People’s motions, responses, and orders regarding people’s motions 18. Motion to seal search warrants, affidavits, orders and case file 19. Supplement to order to seal search warrants, affidavits, orders and case file 20. Motion to clarify court order re: motion to limit pre-trial publicity 21. Response to people’s motion to clarify court order Re: motion to limit pretrial publicity 22. Motion for hearing prior to unsealing complaint, names of victims, addresses or other documents, items, or pleadings in this case 23. Requests for expanded media coverage for hearing of 7.23.12 24. Initial Case management order 25. People’s response to motion to unseal court file, including docket 26. Defendant’s response to motion to unseal court file and prosecution’s respsone 27. Media petitioners reply in support of motion to unseal court file 28. Memorandum in support of motion for leave to intervene and for acess to judicial records 29. Order re: memorandum in support of motion for leave to intervene and for access to judicial records
30. Memorandum in support of motion for leave to intervene and for access to judicial records 31. Order re: memorandum in support of motion for leave to intervene and for access to judicial records 32. Motion by media petitioners for clarification of the court's orders regarding pretrial publicity 33. This order re: motion to unseal court file, including docket)
NOT GRANTED IN THIS CASE: 1. Motion to unseal affidavits of probable cause, subpoenas, arrest warrants, search warrants and requests for or court orders for production of records. (These records, which are currently sealed shall be suppressed and shall be available only to the court and the parties in this case. Subject to any further order of the court. 2. Oh yeah, literally everything thing else involved in this case EXCEPT what was granted above. **Problems: Has the state and the defendant met their burden of showing that continued sealing of the court file will be effective in furthering any compelling governmental interest??
NOTES ON EMAIL SENT TO ME REGARDING UNSEALING OF FILE: Disclosure of U of C records: ● Seems no matter what the law states in regards to C.R.S., the judge will rule how he sees fit. Can media take motion to the Supreme Court? Is this even such a case they hear? Certainly they can’t appeal midst of case and trial can they? ● “very real potential” for untold harm. What? Irreparable harm if disclosed. What? To whom? ● “court may revisit order once a determination of the issue of privilege has been made.” Is the court saying that they are not able, not capable, or choose not to determine issue of privilege at this time?
Register of Actions and all affidavits of probable cause/media asking to unseal: ● The State has objected to further unsealing. ● Defense also objects Court Findings and Orders: Media wants it unsealed based on: 1. common law 2. state statute 3. first amendment
4. colorado case law 5. statement that defendant nor the state have evidence to show unsealing would be detrimental 6. further neither defendant nor state have shown there is not another alternative available to ensure fair trial ● Judge actually makes statement of “this case is unique.” “Mmmhmm” *shaking my head* State does not want it unsealed based on: ● scale of investigation is very large and early in its stage ● State cites that law enforcement has yet to speak to hundreds of witnesses and victims - they have not been contacted yet ● State argued that unrestricted access to the court file would pose a tremendous amount of potential harm to both State and defendant. How so? What’s the argument? The reasoning? ● State cites issues of confidentiality and privilege have yet to be determined. Uh...when will anyone be doing that exactly? When the trial’s over and James is hung in public square? Defendant does not want it unsealed based on: ● Cites common law ● Colorado Criminal Justice Records Act (CCJRA) ● C.R.S. 24-72-301 (http://www.colorado.gov/dpa/doit/archives/open/ 00openrec.htm) ● says court must apply a simple “balancing test’ to evaluate public right of access is outweighed by competing interests. Isn’t that why we have laws in place about public records? This isn’t a contest to see who gets what - it’s about the law and what’s written, isn’t it? ● Defendants states case has had UNPRECEDENTED media access in this case (REALLY? I’m pretty sure the media filming OJ driving down the highway was way more public than ANYTHING we’ve had in this case. Okay, totally irrelevant, but seriously. A little over the top. (TAJEH chiming in here.... Case in point George Zimmerman! Casey anthony!) ● The State believes unrestricted access would impede fair trial - why? “Because this case is precisely the type of rare instance in which pretrial publicity alone has the potential to deprive...fair trial.” Rare. Come on. Exact crime might be but public interest in this case is not. What’s rare is how many people believe in this case. Sounds like they’re also saying it may affect jury selection hence no alternative to sealing record. I think that’s the one point I’d give them.
HOWEVER: CCJRA states that criminal justice agencies...shall maintain records such as arrest, indictment, charging by information, disposition, pretrial or postrial release from custody, judicial determination of mental or physical condition, decision to grant, order, or terminate probation, parole or participation in correctional or rehabilitative programs, and any decision to formally discipline, reclassify, or relocate any person under criminal sentence), and such records SHALL BE OPEN FOR INSPECTION.
BUT - C.R.S. 24.72.301 states that on the ground that disclosure would be contrary to the public interest custodian may deny access.... AND THE SUPREME COURT’S TAKE ON IT ALL: This court has continually recognized the fundamental nature of the 1st Amendment rights and ruled that these rights may only be abridged upon a showing of an overriding and compelling state interest...the other hand, in an appropriate case the interest of the accused in a fair trial by an impartial jury may require limitation upon the exercise of these 1st Amendment rights and the public trial guarantee. Well now, you throw that little bit in and I suppose ANY criminal justice agency can use the ol’ “well, I’m not going to get a fair trial if we unseal these bad boys...”
WHAT THE MEDIA WANTS: 1. Identification of all the parties’ appearances and filings (register of actions) 2. motions and exhibits 3. court orders 4. all affidavits of probable cause 5. any other judicial record in the court file for which no showing of necessity for continued sealing has been made. Answer for above from court/judge: 1. (#1) Judge states that the Register of Actions in this case shall be released for public access in accordance with Chief Justice Directive 05-01 and the redaction procedures of the Clerk’s office. Motion to unseal GRANTED as to the Register of Actions. 1. (#2-4) Under CCJRA, affidavits are not records of official actions which must be disclosed. They are criminal justice records subject to discretionary disclosure. Judge INTERPRETS (is he setting a precedent here?) CCJRA and says affidavits of probable cause, subpoenas, arrest warrants, search warrants, and requests for and court orders for production of records “COULD” (again, precedent? sounds like it) constitute records of investigation...etc. and may be denied on ground that such disclosure would be contrary to the public interest. And then he goes on to say that “even if” such records, docs, etc. can not be properly characterized as records of investigation (hmmm, not standing by your setting precedent anymore?), they are nonetheless criminal justice records subject to discretionary disclosure. Thus court may properly deny access. 2. (#5) Other documents: Yeah, yeah, yeah. we got some documents.
Big deal. I don’t think any of them were sealed in the first place.
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