A state judge reversed course Tuesday after he had indicated he would close his courtroom to the public for the testimony of two Kamehameha Schools security guards in a pretrial hearing for a former teacher accused of recording video of students using his shower.
Former Kapalama campus speech teacher and debate team coach Gabriel Alisna is awaiting trial in the felony invasion of privacy and misdemeanor sexual assault involving three students.
Alisna is asking Circuit Judge Rom Trader to throw out evidence the guards collected from his off-campus faculty housing apartment and turned over to police, including a clothes hook minicamera and memory card. He claims the guards burglarized his apartment because they didn’t have a search warrant. A hearing on Alisna’s request is scheduled for next month.
Bishop Estate trust officials at Kamehameha Schools asked Trader to close the courtroom during portions of the hearing when the guards are asked questions about any conversations they had with school lawyers, because such communications are protected by attorney-client privilege. Trust officials say the guards were conducting the school’s own investigation of Alisna at the direction of their lawyers.
School officials were previously ordered to turn over 150 pages of documents from their own investigation to Alisna. School officials had withheld the documents from police, citing attorney-client privilege, but Trader said Alisna needed them to exercise his constitutional right to a fair trial.
Trader stated his intention in February to grant Kamehameha Schools’ request to close his courtroom. However, according to guidelines the Hawaii Supreme Court established in a 2014 opinion, Trader was required to post notice of a hearing to allow the public to object to the closing, conduct the hearing, then make on-the-record findings before making his decision final. The hearing was on Tuesday.
The Honolulu Star-Advertiser, Hawaii News Now, advocates for child sexual abuse victims, people critical of or suing Kamehameha Schools over its handling of sexual abuse allegations and their lawyers attended the hearing and provided written and oral objections.
Trader said he changed his mind about closing his courtroom when he thought about what next month’s hearing will entail. He said the Supreme Court’s 2014 opinion reaffirmed the public’s qualified right to attend and observe criminal trials during evidence and testimony-taking phases. And while most pretrial hearings are over procedural matters, that’s not the case with Alisna’s request to throw out evidence against him.
“It’s a substantive request. In that regard, it would seem to me that many of those same considerations that (apply to) a trial seem to be precisely of the same type of nature,” Trader said.
Deputy Prosecutor Lynn Costales, who is prosecuting Alisna, agreed.
“He’s looking to suppress evidence that is very critical in this case. And the witnesses that he intends or are anticipated to testify at the suppression hearing are very critical witnesses and they will be very critical witnesses at the trial,” Costales said.
Trader encouraged Kamehameha Schools to appeal his decision. Paul Alston, the lawyer representing the trust, said he and Kamehameha Schools officials will evaluate their options.
“We’ll be making that decision pretty quickly, probably this week,” he said.
