Five years after an Arapahoe County jury decided that that he should be executed for murder, transcripts and other records in the case of Sir Mario Owens remain sealed under a court order that prohibits journalists, death penalty activists or even the defendant's family from viewing them -- an unprecedented level of secrecy that his attorneys claim is depriving the public of vital information about the case, including allegations of prosecution misconduct.
In a recently filed petition to the Colorado Supreme Court, urging the release of unredacted records in the capital case, defense attorneys James Castle and Jennifer Gedde claim that "Mr. Owens has a present and powerful need to publish the facts and circumstances surrounding his case, which include many demonstrable instances of government misconduct, including withholding much favorable evidence, presenting false evidence, and destroying evidence."
In separate trials, Owens and codefendant Robert Ray were both sentenced to death for the 2005 murders of Vivian Wolfe and her fiance, Javad Marshall-Fields; Marshall-Fields had been expected to testify against the two men in another homicide investigation. Their prosecution, one of several death-penalty cases pursued by former Eighteenth Judicial District Attorney Carol Chambers, was conducted in an atmosphere of exceptionally stringent security, with attorneys subject to gag orders, many court motions filed under seal, witness names purged from documents and transcripts denied to news organizations -- all ostensibly to protect witnesses from possible intimidation and reprisals.
At the time, many of the measures were supported by the defense teams, who regarded the intense publicity surrounding the case as a hindrance to a fair trial. But the restraints also had the effect of muffling controversies over the defense's limited access to witnesses and evidence and some unusual moves by Chambers's office, including donating a car to one prosecution witness to aid in her relocation -- and then failing to disclose that arrangement to the defense before trial.
The routine sealing and redacting of records was supposed to be a temporary precaution, but it extended well into the post-conviction stage. Last year, attorneys for Owens asked that the records be unsealed, arguing that the continuing court order was "contrary to the public's interest and fundamentally unfair." District Judge Gerald Rafferty refused, though, ruling that "witness protection issues" outweighed the right to know.
Although news organizations have already published many witness names in press coverage of the trial, attorneys are still required to redact them from every pleading -- even the name of state representative Rhonda Fields, the mother of Marshall-Fields and an outspoken advocate of the death penalty.
In their petition to the Supreme Court, Castle and Gedde point out that the prosecution has been allowed to release names and transcripts when it suited their purposes. Representative Fields and current District Attorney George Brauchler have been highly visible in the recent legislative debate over the death penalty and the furor over the reprieve Governor John Hickenlooper granted to condemned killer Nathan Dunlap, but the Owens defense has been unable to publicly air "many significant post-conviction claims that implicate the fairness, reliability, and wholesomeness of the process by which he ended up on Colorado's death row."
Still bound by a gag order in the case, Castle declined to comment on the petition. Attorney David Lane, who still consults with the defense team on Robert Ray's case, says the extreme secrecy raises not only fair trial but First Amendment issues. "I think the Supreme Court should vacate any gag order in this case," he says. "The government is trying to kill these two men in the name of the public, and the public should be able to see exactly what's going on."
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SHOW ME HOW
Read the petition -- redacted, of course -- below.
More from our Mile High Murder archive circa June 2009: "Mile High Murder: Three's hardly a crowd on Colorado death row after Robert Ray's sentence."