Keep evidence, motion public

Lawyers in cases awaiting trial are forbidden by rules of conduct from making statements that could prejudice public opinion and eventually influence a jury. However, a Honolulu prosecutor has gone too far in trying to keep secret from the public a video of a fatal shooting that certainly will be used as evidence in the murder trial of a State Department special agent.

The surveillance videotapes record the fatal shooting of Kollin Elderts, 23, on Nov. 5 at a McDonald’s Waikiki restaurant leading up to the Asia-Pacific Economic Cooperation conference. Special agent Christopher Deedy, 28, is scheduled for trial in September but Brook Hart, his attorney, wants it delayed to next year.

Murder cases routinely are subjected to pre-trial hearings on motions by defense attorneys to dismiss or reduce the charges, and evidence planned to be used at the hearings is attached to the motion filings.

In the Deedy case, city Deputy Prosecutor Janice Futa is asking state Circuit Judge Karen Ahn to keep secret the defense’s pre-trial motion to dismiss the charge and the motion’s supporting exhibits, including "numerous still photos" taken from the video. Deedy’s defense is that he was trying to defend himself and a friend when Elderts was shot, and the video is considered critical in the case.

Ahn is scheduled to hear Futa’s request on Thursday.

Judges rarely gag lawyers, even in high-profile cases, since attorneys know that professional conduct rules forbid them from making remarks to the media that "will have a substantial likelihood of materially prejudicing" an upcoming court proceeding. After a Nevada man was acquitted of criminal charges following remarks that his attorney at a news conference blamed the charges on "crooked cops," the lawyer was reprimanded. However, the Las Vegas attorney was cleared by the U.S. Supreme Court in 1991.

"Only the occasional case presents a danger of prejudice from pretrial publicity," Justice Anthony Kennedy pointed out in the high court’s ruling in Gentile v. State Bar of Nevada. "Empirical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it."

In the Deedy situation, Futa leaps beyond that case, suggesting that the defense motion itself be blocked from public view, along with defense attorneys’ "personal characterization and interpretation" of the photos. She accuses the defense of making an "attempt to use the judicial process to air their arguments on the merits of the case in the court of public opinion." Not at a press conference, as in Nevada, but in court papers.

That is a stretch, and Star-Advertiser attorney Jeffrey Portnoy will ask that he be allowed to argue against the outrageous blocking of "extrajudicial" exhibits from the public. The Deedy case has drawn state and national interest, and the prosecution should not be allowed, as Justice Kennedy put it, "to sanction abandonment of our normal First Amendment principles in the case of speech by an attorney regarding pending cases."