Unsealed records detail allegations in DLNR officer’s sex assault case

Previously sealed courts documents in a high-profile sex assault case were released late today, detailing a teenage girl’s allegations against a uniformed state law enforcement officer on the Big Island.

Earlier today, the Honolulu Star-Advertiser asked the Hawaii Supreme Court to order a lower court judge to unseal the documents, arguing that the judge blatantly violated a high court ruling and the state and U.S. constitutions in blocking public access to the records.

Mitch Roth, the county prosecutor on the Big Island, said the newspaper’s filing was moot because his office had filed redacted versions of the sealed documents Thursday afternoon, blacking out information related to the victim’s identity.

The redacted versions were filed after Roth and Star-Advertiser attorney Jeff Portnoy had discussed the newspaper’s concerns about the sealed documents.

Portnoy filed a petition this morning requesting that the Supreme Court justices order Hawaii island District Court Judge Barbara Takase to make public probable-cause documents she sealed last week in the case against Ethan Ferguson, a state Department of Land and Natural Resources law enforcement officer.

“As the state’s leading media organization, we take seriously our obligation to protect the public’s right to know and feel compelled to act when a judge makes what we consider to be an unconstitutional ruling and a violation of a previous order by sealing documents that should be available to the public,” said Dennis Francis, publisher of the Star-Advertiser. “For us to allow this to go unchallenged might lead other judges to think they could do the same thing.”

Ferguson, 39, was charged with allegedly sexually assaulting a teenage girl at a Hilo beach park while he was in uniform and on the job Jan. 1. Ferguson was hired by DLNR in June 2013 even though the Honolulu Police Department, which had fired the officer the year before for misconduct, had recommended that the state not hire him.

Takase last week granted a request by Big Island prosecutors to seal the probable-cause documents filed by police. Prosecutors justified the need to block public access by noting that the documents contained the victim’s full name. Roth subsequently told the Star-Advertiser his office filed the motion to protect the minor’s identity.

The redacted documents filed Thursday afternoon provide details of what allegedly happened on Jan. 1, leading to Ferguson’s arrest. The documents, including a police report, said a man in a DNLR law enforcement uniform found the 16-year-old girl smoking marijuana at Lalakea Beach Park and offered not to take her to the police station if she provided him with money, drugs or sex.

When the teenager told the suspect she had neither money nor drugs and was unwilling to have sex with him, Ferguson allegedly sexually assaulted her, according to the police documents. The victim later identified Ferguson in a photo lineup, the documents say.

He is charged with two counts of second-degree sexual assault and three counts of fourth-degree sexual assault.

In his request to the high court, Portnoy said Takase’s ruling was unconstitutional because she failed to provide any notice giving the public and media an opportunity to be heard on the matter and failed to hold a hearing to address the merits of the proposed sealing and potential alternatives. The judge also failed to issue specific findings citing the compelling interest to justify preventing public access to the documents, according to Portnoy’s request.

In addition, Takase’s actions violated the high court’s 2014 ruling in which it determined that Circuit Court Judge Karen Ahn improperly sealed documents in the murder trial of federal agent Christopher Deedy, Portnoy argued.

The sealing of the Ferguson documents not only was unconstitutional but unnecessary to protect the minor’s identity, according to Portnoy, who cited court rules allowing the use of initials in public records to refer to minor victims of crimes.

Portnoy’s petition also asked the justices to order Takase to refrain from sealing any more documents in the Ferguson case, or any other criminal proceeding, without following the proper procedures.

Previously sealed courts documents in high-profile sex assault case released

Star-Advertiser asks Supreme Court for release of court filings