Too much under seal? 8 murder cases closed

Arguments made for, against keeping court files under wraps

Risberg Enlarge photo

Risberg

Southwest Colorado has experienced a spate of murder cases during the last two years, and some local judges have responded by clamping down on the flow of information to the public.

The 6th Judicial District – which includes Archuleta, San Juan and La Plata counties – has at least 12 murder cases chugging through the system.

“It has been a flurry,” said District Attorney Todd Risberg. “It’s shocking.”

Arrest affidavits, which state the facts and circumstances in support of an arrest, have been sealed in eight murder cases, according to court records.

Local judges acknowledge it has become common to seal arrest affidavits in murder cases, but a Denver media lawyer said it is improper in most cases to keep criminal justice records sealed from the public long after charges have been filed.

“Affidavits of probable cause in support of arrest or search warrants – even in cases of murder – are routinely made available to the public once the suspect has been charged with the crime,” said Denver media lawyer Steve Zansberg, who represents The Durango Herald.

“One would hope that the prosecution, the defense and the judge would all recognize the rights of the public to inspect the court file,” he said.

Two district judges, Jeffrey Wilson and David Dickinson, have been responsible for restricting public access to arrest affidavits in the eight murder cases.

To be fair, six of the murder cases involve one incident – the murder of Joey Benavidez, who was shot and killed April 3 a few miles southwest of Ignacio.

Judges sealed the arrest affidavits to allow law enforcement to identify all the suspects and make arrests. But the affidavits remain under seal several months after the arrests and charges were filed.

Chief District Judge Gregory Lyman is overseeing two murder cases in Pagosa Springs, and arrest affidavits remain open to the public in both cases.

During interviews this week, Wilson and Dickinson said there is no automatic policy to limit public access to criminal justice records in murder cases.

But if lawyers or investigators ask for an arrest report to be sealed, both judges said they are likely to grant the request.

“For me, it’s just when they ask,” Wilson said.

Said Dickinson: “I think the courts are probably just trying to be extra careful dealing with these cases because they may not know everything that is happening in the case.”

Both judges also acknowledge that once an arrest affidavit is sealed, it is unlikely judges ever revisit them to consider whether they should remain under seal, unless someone makes a formal request.

Wilson said he is unsure if that would require a simple letter from a member of the public or a legal motion filed by a lawyer.

Lawyers for the Herald filed a 12-page legal brief last year seeking to unseal the court file and arrest affidavit for Justin Wiese, who is accused of killing his friend near Hermosa.

Dickinson ordered lawyers in the case to show “good cause” for keeping the documents hidden from the public. Neither prosecutor nor defense lawyer made any arguments for keeping the case under seal, and Dickinson released the affidavit for public view.

In his order to unseal the case, Dickinson said case files should not be closed unless dissemination of the information would create a “clear and present danger” to the fairness of the trial, or the prejudicial effect of such information about trial fairness cannot be avoided by any reasonable alternative means.

Risberg said he prefers to try criminal cases in the community where they happen. But if too many details are released, it can taint a jury pool, he said.

“It’s a tough balance,” he said, “because I think the public does have a right to know what is going on in their courts and in their communities, but at the same time, my obligation is to make sure we can get this case tried here and the defendant has a fair trial.”

Zansberg said courts have numerous mechanisms at their disposal to ensure a fair trial while upholding the public’s right to know. They can screen potential jurors, enlarge the size of the jury panel and change the trial venue.

It is almost procedural for prosecutors or defense lawyers to request gag orders or to seal documents in high-profile cases.

“It may make sense to seal them immediately, but later on we need a discussion about (whether it is) appropriate to keep this sealed,” Risberg said. “The community is wondering what’s going on.”

shane@durangoherald.com

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