The question of the public's right to have access to the AA before the preliminary hearing keeps coming up, and the argument seems to be that the presumption of openness stated in CRCP Rule 55.1 is absolute or nearly so, and the judge is willfully and nefariously denying the public information it should know. This is utter nonsense.
Rule 55.1 provides that a judge can limit public access to a court record if he specifically identifies one or more substantial interests that would be served by doing so, that those interests override the presumption of openness, and that there is no less restrictive means to protect those interests than limiting access. That's what Judge Murphy did. Each of his findings is subject to challenge by the media, and the media have made their arguments.
But these are arguments about a new rule, not Gospel Truth. I find deplorable the court-bashing that sometimes accompanies the arguments of our advocates for openness.
The focus of our discussion seems to be criticism of Judge Murphy's finding that protection of the rights of the Morphew children: (1) to be treated with fairness, respect, and dignity as statutory victims of crime; and (2) to be protected from harassment, abuse or intimidation. I tend to agree with this criticism. If this were the only substantial interest at stake I would join the chorus demanding that he change his order now. This would be even more compelling if the children have already left Salida and taken advantage if the time the judge has given them to process what they have heard, decide how they will move forward, and protect themselves from the cruelty of abusive people. I can only hope that they have reached out to the people who love them, where I know they will receive a tremendous response.
But this is only one of the judge's findings, and to me his other findings are far more likely to be upheld if the media appeals his ruling.
Judge Murphy found that a significant portion of the information in the AA was not relevant to his finding of probable cause for arrest, and was possibly not even admissible in evidence at trial. He found that release of this information prior to input on redaction from the parties and prior to the defense beginning their investigation could
hamper BM's ability effectively to prepare his defense. He found that
no less restrictive means exists because he and the parties would need a reasonable amount of time to complete the redaction process, which he found to be "critical". A period of two months was was necessary for that purpose due to the length of the affidavit, the fact that he could not meaningfully complete the redaction process without input from the parties, and that the parties were also engaged in other activities that are essential in the early stages of a case. Judge Murphy found that
these considerations override the public's presumptive access "CURRENTLY." (Given the judge's focus on completing a discrete task that he expects to be completed, and his finding that protecting BM's right to a fair process overrides the public's right to access only temporarily, I am a certain as I can be that we will see a redacted affidavit when the current order expires.)
Judge Murphy thus made all the findings the Rule requires, empowering him to limit access to the AA until after the preliminary hearing. He cited judicial precedent supporting his ruling. Rule 55.1 does not require more of him. Nonetheless, he went further: he spelled out his reasoning as to why the media's legal argument was flawed.
The judge's rationale for limiting access may be familiar, but Rule 55.1 on its face does not invalidate any of the reasons courts and parties previously offered for limiting access. It only gives the public the right to have access, or to know the reason why access is denied.
Future decisions will, no doubt, decide whether any given reason involves "substantial interests" that "override" the presumption of openness, and if so whether there are "less restrictive means" available to protect them. But such precedents do not exist today. Pretending otherwise in an effort to paint Judge Murphy's decision as absolutely wrong, or to portray him as a bad actor, is irresponsible IMO.
I want to see the AA as much as anyone, but to me, gaining access before the prelim is less important than protecting BM's right to a fair process - thus preventing the creation of a viable basis to appeal what I hope will be the inevitable conviction.
All MOO, of course.
