Surveillance videos and a federal agent’s version of a fatal shooting in Waikiki last year must be kept confidential to avoid tainting prospective jurors and witnesses, a state judge ruled Thursday.
Circuit Judge Karen Ahn granted a request by city prosecutors to seal the videos and documents filed by State Department special agent Christopher Deedy, who is charged with murder in the shooting.
Ahn ruled the filings by Deedy’s lawyers will be kept private until at least a July 13 hearing on a defense request to dismiss his murder charge.
Deedy, 28, of Virginia, a State Department special agent who was here to provide security for the Asian Pacific Economic Cooperation summit, is charged with murdering 23-year-old Kollin Elderts of Kailua in the early morning of Nov. 5 at the McDonald’s Kuhio Avenue restaurant.
Ahn said the release of the filings might jeopardize a fair trial for either the prosecution or defense or both.
The judge sealed exhibits attached to the defense dismissal motion that contend Deedy is immune from the state murder prosecution because he was acting as a federal law enforcement officer.
The exhibits include the McDonald’s surveillance videos, photographs of the videos and a cellphone video by a passer-by.
Ahn also sealed documents filed by the defense related to the dismissal motion. They include a declaration by Deedy’s lawyer Brook Hart that contains "without attribution or reference to any source, a detailed version of events," she said.
Ahn said the declaration appears to argue issues that may be decided by a jury and, if released now, might also interfere with a fair trial.
Hart’s declaration and other documents attached to the dismissal motion will be made public at the hearing, she said.
"The prosecutor’s office agrees with Judge Ahn’s reasoned and legally sound ruling," city Prosecutor Keith Kaneshiro said in a statement. He said the ruling "preserves the integrity of the trial process."
"It also supports our position that the issue is not one of withholding information, but rather about releasing it at the proper time," Kaneshiro said.
Hart, who opposed the sealing, said he has not yet talked to his client to determine whether to appeal the judge’s ruling.
"The court applied the law to the facts as she considered it in the context of the government’s motion to seal and to strike (photographs from the videos), and the court determined the materials should be sealed but not to strike (the photographs), so we appreciate that," he said.
If the photographs had been stricken, they would not be part of the court record or considered by the judge.
Jeffrey Portnoy also opposed the sealing in behalf of the Star-Advertiser, its TV news partner Hawaii News Now and the Hawaii Reporter website.
"I think it’s a very disappointing ruling," he said.
He said the "clear implication" is that "if some judge decides something filed by a lawyer may or may not be admissible is grounds for sealing a pleading, it’s a very bad precedent."
Ed Lynch, Star-Advertiser managing editor/news, said the newspaper is reviewing its options.
"We are disappointed in the judge’s decision, and we’re concerned about its potential ramifications for the public’s right to a transparent judicial system," he said.
During a hearing last week, city Deputy Prosecutor Janice Futa argued that the video is irrelevant to the dismissal request and that the defense submitted the filings to taint potential jurors in Deedy’s favor.
Hart argued that the video will help Ahn decide whether Deedy reasonably believed he was acting as a law enforcement officer.
Portnoy contended the prosecution failed to establish "compelling reasons" to keep private the filings that courts have long presumed to be open to the public.
In her written order, Ahn said "photography, moving or stills, create powerful impressions" that can be posted on the Internet and be made widely available.
If the videos are released, they will be "viewed, re-viewed, interpreted and commented upon, before the jury has heard and seen all of the trial evidence and received all of the court’s instructions."
"The court is concerned that, based upon parts or even the whole of Exhibit A (the videos), but without more, some members of the public may speculate, discuss, then reach opinions and come to some conclusions, with visual impressions, about what may or may not have happened," she said.
Ahn expressed a concern that potential trial witnesses will view the video, "which then could affect their testimony in minor or substantial ways."
Ahn said problems caused by the release would not be resolved by delaying the trial, giving both sides more chances to excuse potential jurors or switching the trial to a neighbor island.
"Considering the nature of Exhibit A (the videos), the circumstances of this case, the public interest which this case has attracted, and the nature of our public communication capabilities, the release at this time of Exhibit A raises a real possibility that the defense and/or the prosecution will suffer an unfair trial," she said.
The judge said the videos as well as the other exhibits will be sealed until the July 13 hearing or the trial, "whenever the court first rules on its admissibility."
Deedy’s trial is scheduled for September, but Hart is asking for a postponement until March.
