The Supreme Court of Hawaii this week in Oahu Publications Inc. v. The Honorable Karen Ahn upheld a strong public right of access to criminal proceedings and announced a series of procedures to protect that right. The ruling comes after a trial court judge held five secret sessions and sealed the transcripts of those sessions during a high-profile murder trial.
The decision stressed that judicial proceedings are presumptively open. The high court held that, in order to close a courtroom or seal transcripts, a judge must show on the record what compelling interest would be harmed by public disclosure, the substantial risk to that harm, and any alternatives to public access that the court considered but found insufficiently protective.
The decision asserted the importance of alerting the public prior to closing a proceeding so that people have an opportunity to challenge a closure.
In the underlying case, U.S. State Department Special Agent Christopher Deedy was charged with second degree murder after allegedly shooting a man in a Waikiki McDonald’s restaurant in 2011.
During the trial, Hawaii circuit court Judge Karen S.S. Ahn held five proceedings behind closed doors in August 2013 with the prosecutor, defense counsel and Deedy to discuss matters related to the jury. After the fifth closed session, Ahn declared a mistrial and partially sealed the transcript of the trial.
The Honolulu Star-Advertiser and Hawaii News Now filed suit to get the transcripts unsealed and to stop Ahn from closing future proceedings without providing safeguards that the U.S. Supreme Court requires.
Jeff Portnoy, attorney for the news outlets and a partner at Cades Schutte LLP, said he was glad to see the court rule so thoroughly in favor of public access.
Portnoy said Hawaii had been leaning toward closing more proceedings in the past five years, especially in preliminary hearings. Portnoy said he had been thrown out of a courtroom before, so he was glad to see judges set required guidelines for closing courtrooms.
“For the future, I think [this ruling] is incredibly important,” Portnoy said. “For the first time, our supreme court has told trial judge about the public’s right to attend trials, and how trials should remain open absent extraordinary circumstances.”
The closed sessions in Deedy’s trial involved mid-trial examinations of jury members. The Hawaii high court noted that such sessions are rare, but emphasized that they are matters important to public interest. The ruling explained that opening the examinations in this case would not endanger the privacy of the jury or a defendant’s right to an impartial jury.
The decision also found that courts need to act quickly to open transcripts when proceedings are wrongly closed.
“The same procedural and substantive protections that must be observed by a court considering closure of courtroom proceedings in which the public has a potential qualified right of public access must also be observed if a court is contemplating to deny access to the transcript of the closed proceeding,” wrote Associate Justice Richard Pollack for the Supreme Court of Hawaii in the decision.
Ahn unsealed most of the closed parts of Deedy’s transcript in February, but the high court explained that the six-month delay “did not adequately protect the public’s right of access.”
This decision also requires courts to make a “reasonable attempt” to alert media organizations that plan to provide “extended coverage,” or audio and video coverage of a proceeding, when a proceeding will be closed to the public.
Brian Black, executive director of the Civil Beat Law Center for Public Interest, which filed an amicus brief in the case, said this provision is especially impressive.
“That form of notice is not necessarily common in all courts, and I think it’s a great term for Hawaii,” Black said.
The Reporters Committee for Freedom of the Press signed Black’s amicus brief in support of the news organizations.