HILO — Attorneys for the parent company of West Hawaii Today and Hawaii Tribune-Herald are seeking to overturn a judge’s decision to seal a crucial court document in the case of a state law enforcement officer accused of raping a minor girl on a Hilo beach.
Jeffrey Portnoy, a Honolulu media attorney who represents Oahu Publications Inc., said he’ll ask the state Supreme Court to order Hilo District Judge Barbara Takase to unseal probable cause documents in the case of Ethan Ferguson.
Ruling in private on a motion by prosecutors, Takase ordered the documents sealed on Jan. 14 without a hearing. Probable cause affidavits filed by police are almost always a part of the public record in a criminal case.
The Honolulu Star-Advertiser, which is also owned by OPI, obtained a copy of the three-paragraph motion filed by Deputy Prosecutor Haaheo Kahoohalahala.
Portnoy said the order to seal the documents is a violation of both the U.S. and state constitutions, as well as a 2014 ruling by the state Supreme Court that a state judge improperly closed court hearings and sealed transcripts in the first murder trial of federal agent Christopher Deedy.
“What the judge did is absolutely wrong in how she did it,” Portnoy said. “She didn’t hold a hearing; she didn’t give (public notice). And secondarily, what was done to seal the entire pleading was also wrong, although there may be a reason to seal just the identity of the victim.
“So we’re going to ask the Supreme Court to do, at a minimum, what is required, and that is to give notice and hold a hearing before she can seal any portion of that pleading.”
County Prosecutor Mitch Roth said the documents had to be sealed to protect the identity of the minor victim in the case.
“There’s a court rule that protects the disclosure of a minor’s name and other information about the minor,” Roth said.
West Hawaii Today, the Tribune-Herald and the Star-Advertiser have policies of not disclosing the names of sex assault victims.
Roth also said the Deedy rule isn’t applicable in the case of the 39-year-old Ferguson, who is charged with five counts of sexual assault for allegedly molesting a minor Jan. 1 at a Keaukaha beach park. The victim told police that a Department of Land and Natural Resources officer in uniform sexually assaulted her.
“Deedy was a totally different situation than this,” Roth said. “Deedy, you’re talking about trial information. This case … at this point charges have not been filed with the court yet.
“When we found out there were documents filed (by police), we went and looked at the documents. We saw there was information that wasn’t supposed to be filed, and we felt it was important to seal those documents. Because they were not our documents, and there’s the belief that we cannot take a filed document and then redact what’s already been filed, we filed a motion.”
Asked why his office requested the judge seal the documents without a hearing, Roth replied, “Because we needed it done quickly before that information got out.”
He defended Takase’s decision to seal the documents without public notification as necessary.
“I don’t know if the court could’ve done anything but what they did,” he said. “The rules are pretty clear. We have to protect the name and information of our minor victim.”
Roth noted the document contains other information that is usually made public, but added “protecting the victim is our No. 1 priority.”
Portnoy said he believes the sealing of the probable cause documents “is so blatant a violation that I hope the Supreme Court makes short shrift of it and orders (Takase) to follow the procedure.”
“You’ve got to follow the rules,” he said. “You can’t be closing courtrooms or sealing pleadings without following the requirements, and these were completely ignored and violated.”
Ferguson was fired from the Honolulu Police Department for reportedly lying to supervisors about transporting a juvenile female runaway and falsifying reports before his 2013 hiring as an enforcement officer for the DLNR.
He’s free on $13,000 bail pending a scheduled initial appearance Feb. 2 in Hilo District Court.
Email John Burnett at jburnett@hawaiitribune-herald.com.