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Motion to unseal briefs and pleadings in Bryant case

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DISTRICT COURT, EAGLE COUNTY, STATE OF COLORADOCourt Address #1: 885 Chambers Avenue Eagle, CO 81631Court Address #2: Summit Combined Courts P.O. Box 269 Breckenridge, CO 80424Plaintiff: PEOPLE OF THE STATE OF COLORADODefendant: KOBE BEAN BRYANTIntervenors: ABC, INC.; THE ASSOCIATED PRESS; CABLE NEWS NETWORK LP, LLLP; CBS BROADCASTING INC.; COLORADO MOUNTAIN NEWS MEDIA, INC., d/b/a The Vail Daily; THE DENVER POST CORPORATION, d/b/a The Denver Post; FOX NEWS CHANNEL; FREEDOM COMMUNICATIONS, INC., d/b/a The Orange County Register; LOS ANGELES TIMES; NBC Universal, Inc.; THE NEW YORK TIMES; and USA TODAYAttorneys for Intervenors: Thomas B. Kelley, #1971 Steven D. Zansberg, #26634 Christopher P. Beall, #28536 Eileen M. Kiernan-Johnson, #33102FAEGRE & BENSON LLP3200 Wells Fargo Center1700 Lincoln StreetDenver, Colorado 80203(303) 607-3500(303) 607-3600 (Fax)E-mail: tkelley@faegre.com; szansberg@faegre.com; cbeall@faegre.com; ekiernan-johnson@faegre.comCase No.:03-CR-204Div.: RHon. W. Terry RuckriegleABC, Inc.; the Associated Press; Cable News Network LP, LLLP; CBS Broadcasting Inc.; Colorado Mountain News Media, Inc., d/b/a/ The Vail Daily; The Denver Post Corporation, d/b/a The Denver Post; FOX News Channel; Freedom Communications, Inc., d/b/a The Orange County Register; Los Angeles Times; NBC Universal, Inc.; the New York Times; and USA Today (collectively herein the News Media), by and through their undersigned counsel, respectfully move this honorable Court to enforce its prior orders on the filing of sealed material and to unseal various briefs, pleadings, and other materials in the court file.As grounds for this motion, the News Media state as follows:1.The News Media have been engaged in collecting and reporting information concerning this criminal action from its inception, publishing and broadcasting accounts on matters of public concern to the residents of Eagle County and elsewhere. As such, the News Media have standing to seek access to materials that have been filed under seal in this case. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980); see also Hartford Courant Co. v. Pellegrino, 371 F.3d 49, 58-59 (1st Cir. 2004) (recognizing a constitutional and common law right of access to court filings in criminal proceedings).2.As the attached redacted excerpts from Register of Actions indicate, there are dozens of pleadings contained in the court file that have been filed in their entirety under seal, apparently in flagrant violation of the Courts prior orders on sealed filings. Among such pleadings are the following:Defendants Notice of Intent To Introduce Evidence Regarding Mr. Bryants Physical Examination (Filed Under Seal) (filed July 16, 2004) Mr. Bryants Motion in Limine Regarding Statements (Mr. Bryants in Limine No. 2) Filed Under Seal (filed July 21, 2004)Victims Response To Defendants Motion To Preclude The Publication Of Kobe Bryants Statements (Filed Under Seal) (filed July 23, 2004)Peoples Response To Defendants Motion To Preclude Public Release Of Defendants Statement Prior To Trial (Filed Under Seal) (filed July 23, 2004) Reply In Support Of Motion To Preclude Public Release Of Kobe Bryants Statements Prior To Trial (Filed Under Seal) (filed July 27, 2004) Peoples Response to Defendants Motion in Limine Regarding Statements (Filed Under Seal) (filed July 27, 2004)Peoples Motion In Limine Regarding DNA Profile (Filed Under Seal) (filed July 28, 2004)Motion In Limine Regarding Testimony Of Sean Holloway And Dennis Lord (Filed Under Seal) (filed July 28, 2004)Motion In Limine Regarding The Opinions Of Elizabeth Johnson And Yvonne Woods (Filed Under Seal) (filed July 28, 2004)Reply in Support of Mr. Bryants Motion in Limine Regarding Statements (Mr. Bryants in Limine No. 2) (Filed Under Seal) (filed July 29, 2004) Mr. Bryants Motion for Discovery and Exculpatory Information (Filed Under Seal) (filed August 2, 2004)Mr. Bryants Motion for Order Directing Prosecution to Respond to Discovery Requests (Filed Under Seal) (filed August 2, 2004)Mr. Bryants Motion to Preclude Untimely Prosecution Expert Reports and Opinions (Filed Under Seal) (filed August 2, 2004)Mr. Bryants List of Trial Exhibits (Filed Under Seal) (filed August 3, 2004)Response to Prosecutions Motion in Limine Regarding DNA Profile (Filed Under Seal) (filed August 3, 2004)Response to Prosecutions Motion in Limine Regarding Testimony of Sean Holloway and Dennis Lord (Filed Under Seal) (filed August 3, 2004)Mr. Bryants Motion to Preclude and/or Limit Testimony of Richard M. Jobin, Ph.D. (Filed Under Seal) (filed August 4, 2004)3.In light of the withering pace of court filings in this case, virtually all now being made under seal by the parties, the News Media can only assume that in the interim since the August 5, 2004 release of the last redacted copy of the Register of Actions, the parties have filed yet more sealed briefs or pleadings, all without notice to the public and without any apparent advance permission from the Court.4.In its previous orders, this Court directed that the parties were to file substantive motions as public pleadings, and to file any recitation of facts or evidence that were deemed sensitive and potentially inadmissible under seal. See Order Re: News Medias Motion For Public Access To Complete And Accurate Docket Listing Of All Events And Filings In This Criminal Action, filed February 24, 2004; and, Order Denying Peoples Request For Forthwith Motion That All Motions Containing Evidentiary Or Potential Evidentiary Material Be Filed Under Seal, filed Dec. 8, 2003. Instead, as evidenced above, the parties have filed numerous pleadings entirely under seal, and therefore not subject to public inspection.5.It is inconceivable to the movants why Mr. Bryant has filed his List of Trial Exhibits under seal. By definition, Mr. Bryant intends to offer these exhibits at a public trial that is to commence on August 27, 2004. There is no basis in law or fact for placing this exhibits list under seal. Accordingly, that pleading, as well as the others identified above, should be immediately unsealed. See Hartford Courant, 371 F.3d at 58-59; Grove Fresh Dist. v. Everfresh Juice Co., 24 F.3d 893, 897-98 (7th Cir. 1994); United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993); Washington Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991); In re State-Record Co., 917 F.2d 124, 128-29 (4th Cir. 1990); Webster Groves Sch. Dist. v. Pulitzer Publg Co., 898 F.2d 1371, 1377 (8th Cir. 1990); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 575 (8th Cir. 1988); CBS, Inc. v. District Court, 765 F.2d 823, 826 (9th Cir. 1985); (requiring a public docket even in a sealed case, in order to protect the common law right of access).6.If, in response to this motion, the parties contend that portions of their pleadings should remain under seal, the Court should order them immediately to file a public version of each pleading identified above, with only the portions that they contend should remain under seal redacted. The Court should then decide, based upon the applicable standards (necessary to further a compelling state interest, narrowly tailored, and no alternative means to protect said interest) whether those redactions are appropriate.Respectfully submitted this _____ day of August, 2004.FAEGRE & BENSON LLPThomas B. Kelley, #1971Steven D. Zansberg, #26634Christopher P. Beall, #28536Eileen M. Kiernan-Johnson, #331023200 Wells Fargo Center1700 Lincoln StreetDenver, CO 80203(303) 607-3500Attorneys for the News Media Consortium:ABC, Inc.The Associated PressCable News Network LP, LLLPCBS Broadcasting Inc.Colorado Mountain News Media, Inc., d/b/a The Vail DailyThe Denver Post Corporation, d/b/a The Denver PostFOX News Channel Freedom Communications, Inc., d/b/a The Orange County RegisterThe Los Angeles TimesNBC Universal, Inc.The New York TimesUSA TodayCERTIFICATE OF SERVICEI hereby certify that on this ____ day of August, 2004, a true and correct copy of this MOTION TO UNSEAL VARIOUS PLEADINGS IN THE COURT FILE was sent facsimile, with an additional copy by United States Mail, postage prepaid, correctly addressed to the following:Mark Hurlbert, Esq.BY FAXDistrict Attorneys Office 5th Judicial District970-328-1016955 Chambers Rd.Eagle, CO 81631Pamela Robillard Mackey, Esq.BY FAXHaddon, Morgan, Mueller, Jordan, Mackey & Foreman, PC303-832-2628150 E. 10th Ave.Denver, CO 80203John C. Clune, Esq.BY FAXWheeler & Clune, LLC970-845-8604Alpine Bank Building, Suite 101P.O. Box 8612Avon, CO 81620L. Lin Wood, Esq.BY FAXL. Lin Wood, P.C.(404) 522-1716The Equitable Building, Suite 2140100 Peachtree Street, NWAtlanta, Georgia 30303___________________________________DNVR1:60273977.01Continued from previous page . . . .Continued on following page . . . .PAGE 1PAGE 2COURT USE ONLY


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