Colin McCallin Aug. 16, 2018

Colorado law gives judges the authority to hide information about court cases from the public, information ranging from the least important details to the very fact of the cases’ existence. Judges use this power either by a procedure called sealing, which has strict limits set out in state codes, or by orders of suppression, which they may resort to more freely. Part or all of a case may be suppressed before, during, or after trial for any of numerous reasons: maybe the case has something to do with an ongoing separate investigation, maybe the victim of the crime being tried wishes not to be known, maybe the judge worries that public attention will corrupt his or her own decisions, etc.

Not everyone agrees, however, under what circumstances suppression orders should be given or for how long they should stay in effect. The topic has taken on special relevance in Colorado recently. This summer the Denver Post published an article, available here, by David Migoya in which he accuses the state’s judges of going too far with their prerogative to conceal official business. He implies that they have already concealed enough to put the public welfare at risk.

Are Judges Going Too Far?

Does Migoya have a point? He certainly can show that Colorado’s legal apparatus fails now and then. He describes, for example, a case involving a convicted murderer, details of whose crime a judge allowed into public view “after the Post asked prosecutors questions about [the suppression order in the case].” This seems to indicate that a mistake was made somewhere: what judge would reverse a rightful court decision under scrutiny by a news outlet? Was this decision, the suppression order, not rightful? Was the whole thing simply forgotten in some dusty corner of the legal system until the Denver Post looked into it? And Migoya has on his side statements from a number of legal experts to the effect that Colorado is an outlier of case suppression, a place of uncommon secrecy. But it’s quite a jump to conclude from these pieces of evidence that judges statewide are mishandling their office.

More to Consider

Also, by definition, the controversy over case suppression has a second side. Migoya’s article neglects to tell and indeed cannot tell how many of the thousands of suppression orders he mentions contribute to the public good. Many must have, but the article comes close to saying that hiding information about cases in itself works against justice. And although judges are exempt from prosecution for acts in the course of their work, measures exist already to make them account for bad conduct. So the question remains how, if at all, we should restrict judges’ discretion when it comes to case suppression, and how a citizen’s right to privacy should be balanced against the citizenry’s right to transparency in the law.