Circuit Judge Karen Ahn has sealed transcripts of a bench conference and a closed court session held Monday before she declared a mistrial in Christopher Deedy’s murder case.
Before a packed gallery watching one of the most highly publicized court proceedings ever in Hawaii, Ahn called lawyers to the bench for a private conference and then cleared the courtroom.
When the court opened its doors, Ahn questioned jurors to make sure each agreed they could not reach a verdict, then declared the mistrial.
The Honolulu Star-Advertiser on Tuesday sought a transcript of the bench conference and the closed session.
But the transcript had been sealed by the judge.
“It’s unconstitutional,” Jeffrey Portnoy, the Star-Advertiser attorney looking into the matter, said Wednesday.
“It violates the First Amendment right of the press and the public to view matters that occur in the courtroom. It’s a public courtroom.”
Ahn did not explain why she was excluding the public from what transpired during the bench conference and closed court proceeding.
Deedy, 29, a State Department special agent from Arlington, Va., was charged with second-degree murder in the death of Kollin Elderts, 23, of Kailua early Nov. 5, 2011, at the McDonald’s restaurant on Kuhio Avenue in Waikiki.
Deedy’s attorney Brook Hart and city Deputy Prosecutor Janice Futa have declined to comment on what happened during the closed sessions.
The trial spanned five weeks and included 20 days of conflicting testimony over whether Deedy was justified in shooting Elderts.
After a total of more than five days of deliberations, the jury reported it was deadlocked and “further deliberations will not resolve our impasse.”
The jury foreman later said the panel was deadlocked 8-4 in favor of finding Deedy not guilty.
The start of Monday’s court proceedings was held in open court at 3:30 p.m., with Ahn announcing that the jury had sent a note saying it was at an impasse.
When Hart told the judge the defense was not ready to accept a hung jury, she called the lawyers to the bench for the private conference even though the jurors were not in court.
About 20 minutes later, she told members in the gallery, including the relatives and friends of Deedy and Elderts, to leave the courtroom.
Ahn reopened the courtroom shortly after 4 p.m., polled the jurors, who affirmed they were deadlocked, and declared the mistrial.
The Star-Advertiser and the television news stations sent Ahn an email last month during the trial asking her to consider their concerns over bench conferences that were held without the jury present.
Those bench conferences were transcribed by the court reporter, and the media regards them as official court proceedings that should be held in open court, the email said.
Ahn, however, continued to hold those private conferences, including the one Monday afternoon before she cleared the courtroom.
Portnoy said the only time a public court proceeding can be closed, under U.S. Supreme Court and various state Supreme Court rulings, is after the media, on behalf of the public, is given a chance to object to the closure.
He said holding secret proceedings undermines the public’s trust in the court and “shows a disregard for the public’s right to witness courtroom proceedings.”
Portnoy also said judges cannot seal transcripts without a hearing. The judge, he said, is “just compounding her error.”
Five notes that the jury sent to the judge during its deliberations had been kept confidential by Ahn until the conclusion of the trial.
The notes, which were made public Wednesday, included one sent during the first day of deliberations asking for “transcripts of witness statements.”
The judge declined, answering that the jury had “received all of the evidence which you may consider to decide this case.”
Another asked what would happen if one of the jurors was sick, which was why the jury got to take Friday off.
The jurors returned Monday and sent one note at 12:04 p.m. saying they believed they were unable to reach a unanimous verdict.
Ahn told them to continue to deliberate.
Later that afternoon, the jurors sent the final note saying they did not have a verdict and that more deliberations would not help.
The note led to the court session, the bench conference, the closed hearing and Ahn’s declaration of a mistrial.
Ahn scheduled a hearing for Friday to set the retrial date, suggesting May or June next year. But on Wednesday, the court postponed the hearing until Sept. 13.
