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Hawaii's top court affirms public trial access

By Dan Nakaso

LAST UPDATED: 4:49 p.m. HST, Jul 16, 2014

The Hawaii Supreme Court overwhelmingly reaffirmed the media's and public's right to monitor criminal court proceedings on Wednesday, in a case brought by the Honolulu Star-Advertiser and Hawaii News Now.

The ruling also represented a rebuke of Circuit Court Judge Karen Ahn, who conducted five separate proceedings on Aug. 26, 2013 that were closed to the public during the first trial of federal agent Christopher Deedy.

Deedy is now standing trial a second time for the Nov. 5, 2011, shooting death of 23-year-old Kollin Elderts in a Waikiki McDonald's restaurant.

The state Supreme Court ruled that Ahn both improperly closed her court in 2013 and sealed transcripts of the discussions on the fifth day of jury deliberations that later resulted in a deadlocked jury deliberating Deedy's fate.

In its ruling, the Supreme Court went back to the days of Hawaiian royalty and recited a long list of court cases that captivated the attention of the public in the islands, including Queen Lili'uokalani's February 1895 military tribunal that was "crowded with curious spectators."

"In keeping with our firmly embedded policy of open trials," the Supreme Court ruled, "the Circuit Court, and all Hawaii courts conducting criminal proceedings involving adult defendants, are directed to refrain from closing trial proceedings that are presumptively open to the pubic. The presumption of openness may be overcome only by an overriding interest. The court must set forth specific findings demonstrating the closure is essential to preserve the overriding interest, and the closure is narrowly tailored to serve that interest."

The Supreme Court even suggested that the interests of the media and public to get access to court proceedings is more compelling in Hawaii than across the country.

"This case is about as much of a ringing endorsement of the right of the media and the public to attend criminal trials as any case that I've seen in the country," said Honolulu media attorney Jeffrey Portnoy, who represented the Star-Advertiser and Hawaii News Now. "It even says Hawaii's right is greater than the U.S. Constitutional right. It's pretty amazing. It's the most significant free press case to come out of the Hawaii Supreme Court in many a decade."

On Aug. 26, 2013, Ahn cleared her court following a report from the foreperson in the first Deedy trial that the foreperson had seen a juror shaking hands with someone who might have been connected to one of the families in the case.

Ahn then improperly sealed transcripts of the proceedings, the Hawaii Supreme Court ruled.

The Supreme Court's ruling not only has implications for the current Deedy trial, but for all criminal trials "underway today, tomorrow and next month," Portnoy said.

He called the ruling a "primer for all trial judges as to how important it is that trials remain open." 

"There's a tension between the 1st and 6th Amendments (the right to a fair trial)," Portnoy said. 

But Wednesday's ruling, he said, "just reinforces the presumption that all trials are public, including the questioning of jurors."

After the Star-Advertiser and Hawaii News Now objected to Ahn's clearing of her courtroom and sealing of the transcripts of the proceedings, the Supreme Court noted that the news organizations were joined by Civil Beat, KHON, Hearst Television, Hawaii Public Radio, West Hawaii Today, Maui Time Weekly, Hawaii Reporter, the Hawaii chapter of the Society of Professional Journalists, Media Council Hawaii and The Reporters Committee for Freedom of the Press.

Supreme Court ruling Oahu Publications v. the Honorable Karen Anh

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