Judge orders documents unsealed in murder case
April 1, 2015
New details about what led to the arrest of Arturo Navarrete-Portillo in his wife's death — Carbondale's first homicide in 12 years — will be made public perhaps as soon as Wednesday, Garfield County District Court Judge James Boyd decided Tuesday in weighing the First Amendment, which guarantees freedom of speech and the press, and the Sixth, which guarantees a fair trial.
Authorities say Navarrete-Portillo admitted to killing his wife, Maria Carminda Portillo-Amaya, 30, as he was being flown to Grand Junction for medical treatment after a car accident on Feb. 16. Charged with first-degree murder, he sat quietly in a wheelchair listening by earpiece to a translator as public defenders sought to keep secret the contents of the arrest affidavit in his case. They argued that its disclosure would make it hard to seat an impartial jury, should the case go to trial.
The district attorney's office and the Post Independent argued that upholding the public's right to know what is going on in its courts would not compromise Navarrete-Portillo's defense.
"The public does have an interest in open courts, which includes … things that get filed in court," Boyd said from the bench. The defense, he said, had not shown "an appropriate basis to keep this arrest warrant sealed."
Because Boyd's order was rendered after 5 p.m. at end of a hearing on several motions and because the clerk of the court must review the affidavit for possible redactions, the document is not expected to be available until Wednesday morning at the earliest.
Such affidavits outline the reasons to issue an arrest warrant and usually contain some details of the preliminary investigation.
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It's a common practice in Garfield County for judges to keep those documents secret until a suspect has been arrested, ostensibly to avoid interfering with ongoing investigations. They're usually unsealed in time for the first court appearance, but Navarrete-Portillo's wasn't.
Deputy public defender Elise Myer said the affidavit was sealed by Judge Denise Lynch shortly after the warrant was issued Feb 24. Myer told the court that prosecutors asked that the affidavit remained sealed until authorities' investigation was complete.
Myer said the public defender's office, which took over the case March 4 when Navarrete-Portillo was released from protective custody in the hospital and formally arrested, should have time to conduct its own investigation before information in the affidavit was made public.
With the defense's objection itself under seal, Tuesday's hearing was the first time its arguments were aired in a public forum.
"We think at this point in time it would be incredibly prejudicial and harmful to this case if the affidavit is unsealed," Myer said. "The information contained in the arrest affidavit has not yet been tested against defense examination."
The case has a few unusual aspects. It began with what seemed like merely an auto accident at about 7:15 a.m. Feb. 16, when a Toyota 4Runner driven by Navarrete-Portillo crashed into the rear of a cattle truck just south of Carbondale's city limits on Highway 133. First taken to Valley View Hospital in Glenwood Springs, Navarrete-Portillo made his startling admission en route to St. Mary's Hospital.
His wife's body was found in an apartment less than 2 miles from the crash site, but several hours later because of the delayed admission.
In another unusual twist, Navarrete-Portillo's passport was found Feb. 25 in a Carbondale dumpster. The Colorado Bureau of Investigation said a company hired to clean the homicide scene had disposed of it and it wasn't needed in the case.
Myer on Tuesday cited the PI story on that incident, noting both that it showed the strong media interest in the case and complaining that it had been deprived of an opportunity to inspect the crime scene.
She objected to elements of the Post Independent's motion, which cited myriad case law related to the First Amendment.
"I do take issue with the media motion. I think it is inaccurate, I think it is off base, I do not think it was specific to the case," she said.
Specifically, she noted that several cases cited by both the people and the paper involved closed hearings, not unsealing documents. The most applicable precedent, she said, is Nixon v. Warner Communications, in which the court rejected the idea that the release of the Watergate tapes was required under law.
"The public's right of access is outweighed by competing interests," she said.
She asked, should the document be unsealed, that the defense and prosecution confer about potential redactions.
Deputy District Attorney Matthew Barrett wasn't interested in that.
"I don't think it makes much sense for the defense and prosecution to sit down and figure what needs to be redacted. It just needs to be done," he said. "The court has an obligation to redact certain information. I trust the court to do so."
Barrett also rejected the idea that the information in the affidavit, whether admissible in trial or not, might bias the jury pool.
"Some of the most high-profile cases in this country right now you can go write onto the Internet and pull arrest warrants, search warrants, indictments…" he said.
He specifically referenced the James Holmes Aurora theater murder trial, which has received much more extensive media coverage.
The Navarrete-Portillo case is "not a day-to-day kind of coverage that I think we would characterized as pervasive or substantial," he said.
"The freedom of the press is a right that is given to the people of this country by our Constitution," he argued. "It is a right that separates this country from many others on this planet, and in a good way. This is not a star chamber. This is not a closed door proceeding. The defense has not provided the counterweight that would infringe upon this community's right to access this information."
Steve Zansberg, a Denver-based First Amendment lawyer who spoke on the Post Independent's behalf, agreed.
"There hasn't been any articulation of any particular item or information in that document … that would meet clear or present danger or substantial probability of harm to the defendant's rights," he said. "There is no case law that recognizes a criminal defendant's right to investigate as a basis for a trial as a reason to withhold information from the public."
The right to view the affidavit, he added, was not that of the press, but of the public in general.
"It was a showing of probable cause by the people to hold a defendant over for trial," he said. "It is well-established that the public is entitled to understand the basis for such judicial action."
Zansberg noted that such documents are "routinely released" and that "all of the courts to date in the state of Colorado that have address this issue have ruled in favor of public access."
He also objected to the idea of redaction beyond the standard actions taken by the clerk.
"I second the people's view that redaction is the same as complete sealment. It is a withholding of information from the public," he said. "Even if both the public defender and the people agreed to redact certain information, the court is still obligated to independently determine whether the standard for closure has been met, and it hasn't."
Before Judge Boyd made his decision, Myer had a chance to fire back.
"Our country is also separated by the rights that we afford to those that we are accused of crimes," she said in response to Barrett's argument. She reiterated her concern for a tainted jury pool, citing the Michael Blagg case in Grand Junction, in which a trial was invalidated because a jury member provided false background information.
In the end, Boyd favored freedom of information.
"The objection by the defense includes arguments that could be made in almost every case," he said. Some reasons for the public's right to know what is happening in court "were actually developed with the primary intent of protecting the defendant."
Navarrete-Portillo will next appear in court on April 28.