Prosecutors filed a redacted version of probable cause documents in a high-profile sex assault case, apparently a day before the parent company of the Hawaii Tribune-Herald asked the state Supreme Court to order a judge to unseal probable cause documents
Prosecutors filed a redacted version of probable cause documents in a high-profile sex assault case, apparently a day before the parent company of the Hawaii Tribune-Herald asked the state Supreme Court to order a judge to unseal probable cause documents in the case of a state law enforcement officer accused of sexually assaulting a 16-year-old girl on a Hilo beach.
County Prosecutor Mitch Roth said Friday afternoon his office came up with what he called a “creative solution” to the conundrum of protecting the identity of the juvenile victim while disclosing what is normally public information in the Ethan Ferguson case.
“We do not believe we can redact somebody else’s (documents),” Roth said. “The documents that are sealed are still sealed. But we filed a redacted version of the JDPC (judicial determination of probable cause), which is pretty much the documents that are sealed, with the redaction taking out the name of the (victim).
“What we filed was what should have been initially filed by the police. This is a creative solution to set things right, the way it should have been done.”
Online court records indicate the filing was made Thursday in Hilo District Court.
Honolulu attorneys Jeffrey Portnoy and John Duchemin filed a petition Friday in Honolulu on behalf of Oahu Publications Inc., which also owns the Honolulu Star-Advertiser, West Hawaii Today and The Garden Island, “seeking the immediate unsealing” of probable cause documents in Ferguson’s case to allow the media to “fulfill its press function of gathering and reporting news concerning criminal judicial proceedings.”
Hilo District Judge Barbara Takase ordered the documents sealed, without a hearing, on Jan. 14 at the request of prosecutors, who argued the document contained the full name of the victim and asked for the document to be sealed to protect her identity.
The filing states Takase’s order to seal the probable cause document without public notice and a hearing violates the U.S. and state constitutions and the procedural requirements set forth in Oahu Publications Inc. vs. Ahn. In that 2014 case, the state Supreme Court ruled that Honolulu Circuit Judge Karen Ahn improperly closed court hearings and sealed transcripts in the first murder trial of federal agent Christopher Deedy.
“We want the court to follow the procedures that are required,” Portnoy said Friday. “That is, she should not have sealed any portion of the document without notice and an opportunity to be heard, and if she was going to seal any part of it, she would have to make findings justifying why and how.”
The petition claims redaction of the victim’s name from the documents “would have allowed the public to view substantially all” of the probable cause documents “while still protecting the victim’s identity.”
The Tribune-Herald and Star-Advertiser have policies of not publishing the names of sex assault victims.
“We don’t have any opposition at all to the name of the alleged victim being sealed,” Portnoy said. “But the rest of that document, we believe, there’s no justification to seal. All of the other information in that document, other than identifying information, shouldn’t have been sealed in the first instance. But the more basic thing is for her to follow the basic constitutional requirements set out by the Hawaii Supreme Court in the Deedy case.”
The Ferguson case has garnered statewide and national media attention. He is alleged to have sexually assaulted the girl on New Year’s Day at Lalakea Beach Park in Keaukaha while in uniform as a Department of Land and Natural Resources Division of Conservation and Resources Enforcement officer.
The 39-year-old Ferguson, who is scheduled to appear Feb. 2 in Hilo District Court, had been fired for misconduct by the Honolulu Police Department prior to his 2013 hiring as a state law enforcement officer.
The petition also asks the high court to order Takase “to refrain from future document sealings, in the Ferguson case or in any other criminal proceeding, without first providing notice, an opportunity to be heard, and specific factual findings indicating the reason for preventing public access to presumptively public documents.”
Any action taken on the petition would have to be by the full Supreme Court, Portnoy said.
“They can ignore it; they can deny it; they can grant it; they can order a briefing,” he explained. “They have all kinds of options. There’s no set policy or procedure. It’s really up to them how they want to handle it.”
Roth said he thinks the filing of the redacted document by prosecutors makes OPI’s case “moot.”
“My belief, after reading (Portnoy’s) writ, is that the judge did the right thing and she followed the rules,” he said. “And I think the Supreme Court will say it’s a moot point, because it’s already been corrected.”
Portnoy said the newspaper company still has an ongoing concern about improperly sealed documents in future cases “and that’s why we filed the writ.”
“The reason this has been filed is to send a message to judges that you can’t do this,” he said.
Email John Burnett at
jburnett@hawaiitribune-herald.com.
