A state judge expressed some misgivings Thursday about releasing surveillance video of a fatal shooting at a Waikiki McDonald’s restaurant last year, but said any sealing would be only temporary.
Circuit Judge Karen Ahn heard arguments on the request by city prosecutors to keep confidential the video and defense documents seeking the dismissal of a murder charge against federal special agent Christopher Deedy in the shooting.
Ahn said she hopes to rule by Tuesday.
The judge did not elaborate on what she meant by temporary.
Deedy’s lawyer, Brook Hart, and Jeffrey Portnoy, who represents the Star-Advertiser and two other news organizations, opposed the sealing.
Deedy, 28, is charged with murdering Kollin Elderts, 23, who was shot in the chest at the McDonald’s on Kuhio Avenue in the early morning of Nov. 5. Deedy was here as a State Department special agent to help protect leaders of the Asian-Pacific Economic Cooperation conference.
The prosecution wants to keep private Deedy’s dismissal request, which contends he was acting as a federal law enforcement officer and thus immune from prosecution.
City Deputy Prosecutor Janice Futa told the judge that Hart sidestepped court rules ensuring fairness by filing the video and other exhibits that “absolutely have no relevance” to his dismissal motion.
The exhibits were submitted in an attempt to “bias” potential jurors to view the defense’s position more favorably, she argued.
She said only Deedy can say whether he reasonably believed he was acting as a law enforcement officer to support the immunity dismissal.
But Hart argued that the video is relevant to help Ahn decide whether Deedy was acting as a federal law enforcement officer.
Hart has maintained that Deedy acted to defend himself and others from an attack by Elderts and his friend.
Hart suggested that the video as well as another exhibit of a cellphone video made by a passer-by show that his client rendered aid to Elberts after the shooting, did not flee and was not drunk.
The best evidence, he said, is “a movie of (the shooting) actually happening.”
A former television journalist, Ahn said she knows that images might have more impact than documents. She said she’s watched the video twice.
She raised the question of what impact the release might have should the video be circulated via the Internet in a case that already has received widespread publicity.
The judge said people might argue and speculate over what the video shows.
“We don’t want speculation,” she said.
Portnoy, who also represents Hawaii News Now, the Star-Advertiser’s TV news partner, and the online news site Hawaii Reporter, said the answer is to ask the potential jurors and screen those who might be influenced by video should it go “viral.”
He said the prosecution’s argument is “totally devoid” of reasons justifying the sealing.
If Ahn grants the prosecution’s request, then any court document could be sealed if the opposing party doesn’t want the contents released, Portnoy said.
Ahn also asked both the prosecution and defense to submit within two weeks laws, rules and policies related to Deedy’s authority and duty at the time of the shooting.
“I think she’s struggling as to whether some of the information attached to the motion is potentially very prejudicial and unnecessary, based on what the prosecution has argued,” Portnoy said later.
He said he doesn’t think the prosecution justified sealing the filings, especially since juries were impaneled in cases that generated much more publicity, such as the bribery case against former Mayor Frank Fasi in the 1970s or the Byran Uyesugi murder case involving shooting deaths of seven co-workers in 1999.
Hart said, “The judge seemed genuinely concerned that she makes the right decision.”
Futa, the deputy prosecutor, declined comment.
Deedy’s motion to dismiss the murder charge based on the immunity is scheduled to be heard by Ahn in July.
The trial is scheduled for September.
