DA candidates talk open records
The following is the fourth of five questions posed by The Aspen Times to the three candidates for 9th Judicial District Attorney. The candidates include current District Attorney Sherry Caloia, a Democrat; Jefferson Cheney, a Republican; and Chip McCrory, an independent.
The 9th Judicial District includes Pitkin, Garfield and Rio Blanco counties.
Question: What is your position on open records? Should police reports/videos be released to the press prior to adjudication? Why or why not?
Open records is an area of the law that I dealt with extensively in private practice. When an open records request is made of my office I respond quickly and knowledgeably. If a document is an open record it is made available to the requester within the time frame allowed by law. However, criminal justice records are not governed by the Open Records Act. Once a case is resolved, police reports and other documents are available. During the pendency of a case, the Rules of Professional Responsibility, No. 3.8 and No. 3.6, restrict what I can disclose to the public. These rules also require that I use reasonable efforts to prevent information on pending cases from being given to the public by the agencies that we work with. I do ask the sheriff and police to not disseminate any information (not in the court file) and I do that publicly. However, my office does not have the ability to control what the sheriff or police do and if they do release documents or other information before a case is resolved we understand why. The risk of releasing these records, videos or other information is that other witnesses to a criminal event will view or read them and such could affect their memory of the event. The rules provide my answer to the question. I cannot condone the release of evidentiary information before a case is resolved. In addition, I would like to state that when the arrest warrants and other court material is suppressed from public view, I have and will continue to file a motion to change that court order as soon as there is no further investigatory need to keep them secret.
District attorneys are required to follow the Rules of Professional Conduct. These rules place restrictions on what can be revealed about legal matters generally, and have specific restrictions on prosecutors. Prosecutors are barred from releasing material that may prejudice a trial’s outcome, and to take reasonable care to prevent others, such as law enforcement or employees, from making statements that would do so.
District attorneys are held to a higher standard and have the responsibility to make sure a defendant gets due process of law and is not convicted merely because of publicity or bias. The district attorney works with law enforcement but does not control them. County sheriffs, as elected officials, are not accountable to the DA and may act in ways that could prejudice a proceeding.
The solution is to have a working relationship with the police. Law enforcement has a priority of catching criminals. District attorneys have a duty to handle cases in accordance with the law and evidence. This causes conflict sometimes. If the police and the DA understand their different functions, and can discuss how to work out these differences, then these conflicts can be minimized. Cops don’t want their cases overturned on appeal any more than DAs do.
I believe that any government official should be mindful of the government’s duty to be “of, by and for the people” served and as a result, the people should have the opportunity to view and observe how their elected officials are performing. Therefore, I believe in the highest level of transparency possible given the particular circumstances. My default philosophy is to ensure the public has access to information maintained by its electorate. There would have to be a substantially compelling reason to deny the public’s access to public records such as police reports, surveillance videos, etc.