Petition says judge violated 2 constitutions

The Honolulu Star-Advertiser on Friday asked the Hawaii Supreme Court to bar a lower court judge from sealing any more documents in a high-profile sex assault case and other criminal proceedings without following required procedures detailed in a recent high court ruling.

In its petition to the justices, the newspaper argued that Hawaii island District Judge Barbara Takase blatantly violated the 2014 ruling and the state and U.S. constitutions last week when she sealed previously public documents in the case against Ethan Ferguson, a state Department of Land and Natural Resources law enforcement officer.

Ferguson is accused of sexually assaulting a 16-year-old girl at Lalakea Beach Park on the Big Island while he was on the job Jan. 1.

Honolulu attorney Jeff Portnoy, representing the Star-Advertiser, asked the justices in the petition to order Takase to make the Ferguson records public again.

The probable cause documents, which contained lurid details of the alleged assault, were sealed by Takase at the request of Hawaii County prosecutors without any advance notice to the public or a court hearing affording the public or media an opportunity to object to the sealing. Prosecutors in their request to Takase noted that the documents contained the victim’s full name.

Ferguson, 39, of Hilo is facing five counts of second- and fourth-degree sex assault.

After Portnoy and Hawaii County Prosecutor Mitch Roth discussed the newspaper’s concerns about the sealing, Roth’s office on Thursday afternoon filed redacted versions of the documents, mostly blacking out identifying information about the victim.

Roth, who said his office sought the sealing to protect the victim’s identity, told the Star-Advertiser that the filing of the redacted documents makes the newspaper’s petition moot.

But Portnoy disputed that, saying the primary reason for the request was to have the Supreme Court “make sure trial judges are aware of the law of the land.”

The Star-Advertiser’s publisher, Dennis Francis, underscored that point.

“As the state’s leading media organization, we take seriously our obligation to protect the public’s right to know and feel compelled to act when a judge makes what we consider to be an unconstitutional ruling and a violation of a previous order by sealing documents that should be available to the public,” Francis said. “For us to allow this to go unchallenged might lead other judges to think they could do the same thing.”

The police documents made available Friday alleged that Ferguson sexually assaulted the girl after he found her smoking marijuana at the park and she spurned his request for money, drugs or sex in exchange for his not taking her to the police station. He was in his uniform and on the job at the time of the alleged assault, and the victim later positively identified him in a photo lineup, according to the documents.

Ferguson was hired by the DLNR in June 2013 even though the Honolulu Police Department, which had fired him the year before for misconduct, had recommended that the state not hire him. He is on paid leave from his DLNR job.

Ferguson’s Big Island attorney, M. Kanani Laubach, did not respond to a Star-Advertiser request seeking comment Friday afternoon.

In his request to the high court, Portnoy recounted the 2014 decision by the justices finding that Circuit Judge Karen Ahn improperly sealed documents in the murder trial of federal agent Christopher Deedy.

In the ruling, the justices detailed the steps judges must follow before sealing documents: provide public notice, hold a hearing and specify in the sealing order the compelling reasons for making the records confidential.

Portnoy described Takase’s order as a blatant violation of the Ahn decision, noting that none of the three steps were followed. The fact that she sealed previously public records made the violation of the public’s constitutional rights even more extreme than what happened in the Ahn case, according to Portnoy.

In the Deedy case, Ahn had sealed transcripts from closed proceedings. The justices took issue not only with the way Ahn sealed the documents but the improper closing of the proceedings.

The sealing of the Ferguson documents was unnecessary to protect the minor’s identity, according to Portnoy, who cited court rules allowing the use of initials in public records to refer to minor victims of crimes.

Even without Takase’s order, the Star-Advertiser would not have named the alleged victim in the Ferguson case. The newspaper’s standing policy is to not identify victims in sex assault cases.

Roth said his office has had discussions with Hawaii island police, who filed the probable cause documents using the victim’s name, and they are considering changing their procedures so this doesn’t happen again.

Formal charges against Ferguson filed in court Thursday by Roth’s office identified the victim by initials only.

Previously sealed courts documents in high-profile sex assault case released by Honolulu Star-Advertiser

Star-Advertiser asks Supreme Court for release of court filings by Honolulu Star-Advertiser