By Andrew Longstreth
(Reuters) - The proceedings against accused Colorado shooter James Holmes will run into a tough question this week, one faced in many high-profile criminal cases: How do you balance the defendant's right to a fair trial with the public's right to know?
Holmes is accused of killing 12 people and wounding 58 others at a midnight screening of "The Dark Knight Rises" movie in a Denver suburb last month in one of the worst outbursts of U.S. gun violence in recent years. He is charged with 24 counts of first-degree murder and 116 counts of attempted murder.
In most court cases, documents are available to the public, but Judge William Sylvester sealed the Holmes case on July 20 at the request of prosecutors. Major media organizations have asked the judge to unseal the documents, citing the public's right of access.
Sylvester has set a hearing for Thursday to decide whether to do so. He has asked prosecutors to respond to the motion by Monday and Holmes's lawyers by Thursday, according to an attorney for the media companies.
Among the documents the media want to see are affidavits that law enforcement officers would have filed before arresting Holmes, which would show why the officers thought that Holmes was the shooter.
The media companies also want to see the prosecutors' motion to seal the case, other motions that have been referenced in court, plus two defense motions "that we don't know what they are about at all," a lawyer for the media companies, Steven Zansberg of Levine Sullivan Koch & Schulz, said in an email.
It is unclear whether prosecutors or Holmes' attorney will oppose the media's request.
In similar cases, the government often raises concerns that making certain documents public would jeopardize an ongoing investigation. Defendants, meanwhile, often raise privacy concerns and the fear that pretrial publicity would jeopardize their right to a fair trial. Judges may also lean toward sealing such cases out of respect for victims and their families.
A representative of Arapahoe County District Attorney Carol Chambers said her office is not commenting on the case. Douglas Wilson, a court-appointed attorney for Holmes, did not return a call seeking comment.
PUBLIC'S RIGHT OF ACCESS
In their motion, the media companies argued that Sylvester's order "violates the public's constitutional right of access to the records of criminal prosecutions, and undermines our nation's firm commitment to the transparency and public accountability of the criminal justice system."
The outlets that filed the motion include The Associated Press, ABC Inc, Bloomberg LP, The Denver Post, and The New York Times Co. Thomson Reuters was not part of the motion.
The media companies cited a Colorado Supreme Court case that adopted American Bar Association standards governing public access to criminal court records.
Under those standards, the media companies argued, public access can only be denied when there is a "clear and present danger to the administration of justice, or to some equally compelling governmental interest, and no alternative exists to adequately protect that interest."
It is up to Sylvester to weigh the competing interests. But law and precedent require that judges start with the presumption that all court records should be open to the public, according to experts.
"You don't have a presumption of sealing," said Jonathan Sherman, an attorney at the law firm Boies, Schiller & Flexner who has worked for media companies. "You have a presumption of openness."
In addition to sealing court records, Sylvester also sealed the court docket, which lists what documents have been filed in connection to the case. "We don't know how many other documents are in the court file because there is no public docket," said Zansberg, the attorney for the media companies.
Legal experts said the move is highly unusual.
"You can't even see the progress of the case and make an assessment of what should be unsealed," said Thomas Julin, an attorney at the law firm Hunton & Williams who has represented media companies in disputes over access to court records.
The media has recently been successful in getting some documents unsealed in the case of Jared Loughner, who was charged last year in a deadly shooting spree that gravely wounded Representative Gabrielle Giffords.
As the Holmes case gets further under way, there may be other parties who express concerns over what is sealed. Julin of Hunton & Williams said attorneys representing victims of the families may insist that certain photographs from the crime scene not be released.
The issue was raised in the death penalty phase of Danny Rolling, who admitted to killing five students in Gainesville, Florida, in 1990. In that case, Julin represented Florida media outlets that opposed a motion by prosecutors to keep pictures and videos from the murder scene under seal. The government request was supported by the parents and siblings of the murder victims, who said their privacy would be violated by the disclosure of the photographs.
A compromise was reached that allowed reporters and the public to review the material in the presence a court clerk but prohibited them from reproducing the material.
"Some, including the trial judge, thought that having the right to see the photographs was cathartic for the community," Julin said.
(Reporting by Andrew Longstreth; Editing by Eddie Evans and Cynthia Johnston; Desking by Cynthia Osterman)