District Court Judge Paul King on Wednesday sided with The Associated Press and The Denver Post, which argued for the document's unsealing. King ruled that neither prosecutors nor Cox defense attorney Harvey Steinberg presented sufficient evidence that the affidavit's release would jeopardize Cox's right to a fair trial.
District attorney spokeswoman Casimir Spencer declined to comment. Neither Steinberg nor Steven Zansberg, attorney for the media companies, immediately returned messages seeking comment.
"The judge made an extra-special effort to follow the law, taking into account arguments from both sides, but also giving the public's right to know a fair shake," said Tom Kelley, a Denver attorney specializing in civil rights and First Amendment issues who isn't involved in the case. "That isn't always the case from a judge whose first concern is getting a fair trial."
Craig Silverman, an attorney for the accuser, said in a statement that the judge had acknowledged and responded in part to his argument concerning his client's right to privacy. "Her victimization will be made clear in a court of law," he said in the statement.
Cox is charged with one count of sexual assault while the victim was physically helpless and one count of sexual assault while the victim was incapable of determining the nature of the conduct. Court documents say the alleged assault happened Sept. 6. Cox was arrested Dec. 9 and is free on $50,000 bail. Police in Lone Tree, a suburb of Denver, investigated the case.
Cox has pleaded not guilty and is scheduled to go on trial in October. He faces up to life in prison if convicted.
In his ruling, King rejected arguments by Steinberg and prosecutors that the media had no legal standing to argue for the documents' release, noting that the courts have ruled the media has a First Amendment right to access court documents. King also wrote that the media's reporting of the allegations contained in the affidavit would not jeopardize Cox's right to a fair trial.
"There can be no presumption that everyone in the jury panel will read, follow and find important the media accounts of the case," King wrote in his ruling. "Furthermore, there are methods that can be used by the court to address widespread media coverage and protect the right to a fair trial."
King said methods of ensuring a fair trial can include questioning jurors before the trial and moving the trial outside of Douglas County.
Prosecutors had argued against the release, noting in documents that Cox is a public figure and the media's presence increased the possibility of the case taking on a high-publicity nature.
Steinberg in March asked that a preliminary hearing, in which investigators present evidence in court, be held in secret. When a judge ordered that the hearing be public, Steinberg waived that hearing, later saying it would have sensationalized the case and created a situation in which he couldn't get a fair jury.
Copyright 2011 by The Associated Press