Circuit Judge Karen Ahn will not unseal McDonald’s surveillance videos of the Nov. 5 shooting of Kollin Elderts by a U.S. State Department special agent in town for the Asia-Pacific Economic Cooperation forum.
Ahn denied a request Wednesday by the Honolulu Star-Advertiser and its television news partner, Hawaii News Now, that she reconsider her May 31 decision sealing the videos and the description of the videos by attorney Brook Hart, who is representing special agent Christopher Deedy.
Deedy, 28, is charged with second-degree murder for shooting Elderts, 23, of Kailua, in the chest at the McDonald’s Kuhio Avenue restaurant.
Attorney Jeff Portnoy, who represents the news organizations, told Ahn that statements Hart filed in federal court — where Hart hopes to transfer the case — "sets out in great detail Mr. Hart’s recitation of events … repeatedly saying the video will support his allegations. … The only thing now that the public has not had a chance to see, even though both sides continue to reference it, is the video."
Ahn denied the motion to reconsider, saying, "What’s filed in federal court is another judge’s kuleana (responsibility). … I just don’t see the purpose or the good of adding to what Mr. Portnoy has called a piecemeal submission of materials or allegations by the lawyers. To release the video is to simply add one more piece that is open to exactly what the court is concerned about."
Ahn has said releasing the videos could allow them to be widely viewed on the Internet and taint potential jurors and jeopardize a fair trial.
Citing the court’s interest in "keeping a clear and accurate record," Ahn then critiqued a story in Wednesday’s Star-Advertiser about details of the Nov. 5 shooting, based on a request Hart filed to transfer the case from state court to federal court.
Hart’s transfer request said federal law enforcement officers facing state prosecution have a right under federal law to have their cases removed to federal court if the officers were acting within the scope of their authority.
The Star-Advertiser story cited Hart’s transfer request, which said Ahn’s informal advice during status conferences encouraged Deedy to take the case to federal court.
"I read in the newspaper today (Wednesday) that the court supposedly is alleged to have given informal advice and encouraged Deedy to take the case to federal court," Ahn said. "That is not true. This is what actually happened: At the status (hearing) of June 6, 2012, the defense again raised the possibility at some undetermined time of trying to move this litigation. Relevance of the comment was unclear. At that point the court instructed Mr. Hart to make up his mind about what he wanted to do. The court said at least twice to all counsel and others present at the status conference that it was not saying that the defense should or not file its federal court request. But if it was going to do so, then do it now."
Hart said, "I certainly felt encouraged by your willingness to give us time to decide … encouraged to move forward."
Ahn responded, "Well, no. I said clearly, ‘I’m not telling you to do it or not to do it, that’s your decision. But what I’m saying is: If you’re going to do it, let’s do it now instead of trying a lot of matters and litigating a lot of matters in state court and then moving to another court and litigating the same case.’"
Hart reiterated, "I felt encouraged to do it and did it."
After the hearing, Portnoy told reporters that if the case moves from Circuit Court to federal court, "we’re going to wind up going through this whole thing again."
"You’ve got both the prosecution and defense … arguing what they say is in the video. The only truth of what’s in the video is the video."
