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File sealed in sexual assault case

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    Ethan Ferguson: He is charged with sexually assaulting a minor at a beach on Hawaii isle on Jan. 1

A state judge at the request of county prosecutors Thursday sealed documents in the high-profile case involving a Department of Land and Natural Resources officer who has been charged with sexually assaulting a minor while on the job.

Hawaii island District Judge Barbara Takase granted a prosecution motion filed earlier Thursday to seal the charging documents without giving notice to the public or holding a hearing — a process that Honolulu media attorney Jeff Portnoy said “absolutely” violates the state and federal constitutions and a recent Hawaii Supreme Court ruling.

“This is like taking a meat cleaver to cut a hot dog.”

Jeff Portnoy
Honolulu media attorney

Deputy Prosecuting Attorney Ha‘aheo Kaho‘ohalahala asked the court in a three-paragraph motion to seal the documents because they contained the victim’s full name.

The Honolulu Star-Advertiser and other media outlets typically do not name victims in sex assault cases.

The so-called probable-cause documents sealed by Takase were filed last week and pertain to why authorities initially were holding DLNR officer Ethan Ferguson without charges. Suspects can be jailed for up to 48 hours without being formally charged.

Ferguson, 39, was taken into custody Jan. 7 and charged the following day with five counts of sexual assault in connection with the alleged molestation of a minor Jan. 1 at a Big Island beach park. The victim told police that a state DNLR officer in uniform sexually assaulted her. He is out on bail, which was set initially at $13,000.

The sealed documents contain details of what allegedly happened that day.

If the intent of the prosecutor’s office was to protect the minor’s identity, it went about that the wrong way, according to Portnoy, who has represented the Star-Advertiser.

“This is like taking a meat cleaver to cut a hot dog,” he said.

Portnoy said the court’s action not only was unconstitutional, but violated a 2014 Hawaii Supreme Court ruling that found that a state judge improperly closed court proceedings and sealed transcripts in the first murder trial of federal agent Christopher Deedy.

Retired Star-Advertiser reporter Ken Kobayashi, who covered Hawaii courts for more than 30 years, said probable-cause affidavits routinely are open to the public so citizens can understand why a suspect is being held without charges.

If prosecutors are concerned about protecting a victim’s identify, less drastic measures, such as redacting names or using “Jane Doe” designations, can be used to accomplish that, according to Kobayashi.

“To seal the entire document is outrageous, especially in view of the public interest in this case,” he added.

Mitch Roth, who heads the prosecuting attorney’s office on Hawaii island, said his office’s motivation in seeking to seal the documents was to protect the minor’s identity, but he didn’t believe that simply redacting her name would have been appropriate. He would not elaborate. He also said he didn’t believe the Deedy ruling applied to the circumstances in this case.

Told of the common media policy to refrain from identifying victims in sex assault cases, Roth said, “We have had papers print inappropriate things recently.” He referred specifically to a case involving a crime against a woman but declined to elaborate.

The Ferguson case has attracted widespread media attention because he was hired in June 2013 by DLNR despite the Honolulu Police Department’s recommendation not to hire him.

Ferguson was fired from the police force in February 2012 — a fact HPD disclosed to the state as part of a background check the state conducted prior to his hiring. But no one from the state followed up on that information, according to HPD.

Ferguson was fired by HPD because he transported a juvenile female runaway without a supervisor’s authorization and falsified records, according to police documents.

The suspect is scheduled to make his next court appearance Feb. 2. Takase’s ruling said the documents will be sealed until the court decides otherwise.

Motions to seal documents in criminal trials mostly are filed by defendants on the grounds that making the information public would infringe on their right to a fair trial.

Court documents and proceedings are open to the public and can be sealed only under extraordinary circumstances and after a hearing is held, according to Portnoy.

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