KEALAKEKUA — A judge is weighing whether to open or close his courtroom for a motion to dismiss a drug case.
Judge Robert DS Kim listened to public testimony on the matter Thursday in 3rd Circuit Court and will issue a written order before the case’s next hearing, June 20.
The unusual circumstance that allowed the public to offer up their own opinions or objections is a result of Kim issuing a Notice to the Public at the courthouse. That notice posted Monday made the public a party and offered them that opportunity — a move that the state described as unprecedented, “irresponsible” and “retaliatory.”
Kim acknowledged the issuance was uncommon — the Hawaii case Grube v. Trader was one of the only cases referenced as a guide — but said it was warranted because he was being asked to dismiss a serious issue without detailed reasons why he should.
“I want to be satisfied,” Kim said on wanting specific information as to why the case should be dropped. “I’m not going to take your word, ‘Trust me.’”
Prosecutors are looking to have the felony drug case thrown out at the request of the police chief because a key witness is a sworn police officer under internal investigation.
After conferring with Police Chief Paul Ferreira, the Office of the Prosecuting Attorney filed a motion to dismiss all charges against Jose Miranda in a drug case that spans 18 months. The unnamed witness is on leave from the department due to an ongoing internal investigation.
Miranda was charged with 11 counts of first-degree promoting a dangerous drug, a class A felony, in December 2017. Two counts were dropped, and after four continuances, trial was set to begin on June 18.
On May 24, Kim called for an evidentiary hearing on the motion to dismiss.
The judge called it a serious case involving multiple felonies and said it is the duty of the court to investigate further to determine whether the case should be dismissed, according to court minutes.
The state then filed a motion to close to the public the evidentiary hearing on the state’s motion to dismiss.
Thursday’s hearing was on that.
Three members of the public testified. West Hawaii Today objected to the closure. One member of the public praised the judge for offering up the platform for the public to speak in court.
Active licensed attorney David Blancett-Maddock, however, objected as a member of the public representing himself. He said the public notice portion was premature and should be shelved as the judge had other options to obtain the needed the information in a closed courtroom before deciding its fate.
The judge could have ordered a special counsel to investigate the circumstances around the case. Another avenue would have been to hold an “in camera” hearing, where testimony is recorded and the judge can view it privately before deciding what the next step in the case is.
Those methods protect the constitutionally afforded privacy citizens are granted when it comes to certain information. After that information is obtained behind closed doors, the judge can rule what should and shouldn’t be public.
As it stood Thursday, there wasn’t enough information to know what needed to be protected and didn’t, therefore it was too early to have the public weigh in — “a public that needs to know but not yet.”
“I’m interested in keeping the integrity of our judicial system,” Blancett-Maddock said, calling the decision between the public’s right to know and privacy protections “a balancing act.” “My trust in the judicial system is that there are hearings for that.”
According to Ferreira in a court declaration dated June 3, the unnamed material witness at the center of the conflict was a sworn HPD officer who is currently on leave from the department.
Ferreira stated neither the witness nor a HPD representative could appear for testimony, and documents regarding the nature of the leave could not be provided due to an ongoing internal investigation implicating the witness.
“There are no alternatives to closure that would adequately protect the compelling interest,” County of Hawaii Deputy Corporation Council Lerisa Heroldt stated in defense of the motion, a point she reiterated on Thursday.
Kim cited the 2018 Grube v. Trader Hawaii Supreme Court opinion which, in part, states “to qualify as compelling, the interest must be of such gravity as to overcome the strong presumption in favor of openness. Although privacy rights may in some instances rise to the level of compelling, simply preserving the comfort or official reputations of the parties is not a sufficient justification.”
Deputy Prosecuting Attorney Shari Lawson “vehemently” objected to the public hearing, pointing to other routine options the judge could have selected.
“The state believes the manner and the way the court handled this motion is irresponsible,” she told Kim, noting there has never been any type of notice to the public regarding sealed files. “In camera and under seal documents are routinely done and there has never been a notice to the public for comment. Never.”
Kim responded he had never been presented with an affidavit where a material witness served as the basis of a Class A felony dismissal would not be named, nor the reason for their unavailability be disclosed.
He called a meeting with attorneys and still didn’t get specific answers, he said.
“This measure is retaliatory,” Lawson said, indicating the Notice of Public Hearing was issued after a deputy prosecuting attorney would not provide the information the judge sought in that meeting. “What’s this hearing going to get?”
She also said the public notice was irresponsible because it cast suspicion where none was warranted. She pointed to a West Hawaii Today article earlier this week previewing Thursday’s hearing that also mentioned two former officers were facing charges in an unrelated matter in Hilo.
The two matters have nothing to do with one another, she said, while witness unavailability is a routine matter. Calling the public’s attention to it with limited information makes the case look nefarious.
“And it’s not,” she said, adding, “I guess in the future we’ll be having more of these.”
Kim’s written decision will be filed with the court. The next hearing for the case is scheduled for 1 p.m. June 20.