OAHU PUBLICATIONS INC., dba the Honolulu Star-Advertiser, a Hawai'i corporation, and KHNL/KGMB, LLC, dba Hawai'i News Now, a Delaware corporation, Petitioners,
THE HONORABLE KAREN S.S. AHN, Circuit Court Judge of the Circuit Court of the First Circuit, Respondent Judge, and THE STATE OF HAWAI'I and CHRISTOPHER DEEDY, Respondents
As corrected August 5, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
ORIGINAL PROCEEDING. CR. NO. 11-1-1647.
Jeffery S. Portnoy and John P. Duchemin, for petitioners.
Robyn Chun and Charleen M. Aina, for respondent judge.
Janice T. Futa, Brook Hart, Margaret C. Nammar, and Thomas M. Otake, for respondents.
Robert Brian Black, for amici.
RECKTENWALD, C.J., NAKAYAMA AND POLLACK, JJ., CIRCUIT JUDGE BROWNING IN PLACE OF ACOBA, J., RECUSED, AND CIRCUIT JUDGE KUBO IN PLACE OF McKENNA, J., RECUSED.
[133 Hawai'i 486]
This case requires us to address the procedures that a court must undertake to protect the constitutional right of the public to attend criminal trials while also protecting a defendant's potentially countervailing constitutional right to a fair and impartial jury. Additionally, we address the procedures that a court is required to follow before denying public access to a transcript of a closed proceeding.
These important issues arise out of petitions for writs of prohibition and mandamus by Oahu Publications Inc., dba The Honolulu Star-Advertiser (Honolulu Star-Advertiser), and KHNL/KGMB, LLC, dba Hawaii News Now (Hawaii News Now) (collectively, Petitioners). The petitions were filed after the court conducted five separate court proceedings that were not open to the public, and then subsequently sealed the transcript of these court sessions. The relevant proceedings took place on August 26, 2013, during the trial of
State v. Deedy, No. 1PC11-1-001647, on the fifth day of jury deliberations. Later on that same day, the circuit court declared a mistrial as a result of a deadlocked jury.
The Petitioners requested two writs. The first, a writ of prohibition, would prohibit the circuit court from enforcing any order sealing portions of the August 26, 2013 proceedings and would order the circuit court to unseal all transcripts from that date. The second, a writ of mandamus, would prohibit the circuit court from closing the courtroom in a similar manner in a re-trial of State v. Deedy and in any other criminal proceeding.
As explained below, the relief requested by the Petitioners' writ of prohibition was subsequently provided following a remand of the matter to the circuit court; therefore the writ of prohibition is dismissed. We also deny the writ of mandamus that seeks to peremptorily prohibit Judge Karen S.S. Ahn (Judge Ahn) from again closing her courtroom unless specific steps are followed. However, in recognition of the rights and protections declared by the United States Supreme Court and the Hawai'i Constitution, we adopt procedures to guide our courts in the future when making a determination whether to close court proceedings or to deny public access to the transcript of the closed proceeding.
1. Factual Background
This original proceeding resulted from court proceedings that were not open to the public and from the sealing of the transcript of those proceedings during the trial of U.S. State Department Special Agent Christopher Deedy (Deedy or the Defendant), who was charged with murder in the second degree for shooting and causing the death of a patron in a fast food restaurant in Waikiki. The trial in the Circuit Court of the First Circuit (circuit court) was presided over by Judge Ahn and lasted approximately five weeks until a mistrial was declared. Considerable public attention and media coverage was devoted to the trial.
A. The non-public proceedings and sealing of the transcript
On August 26, 2013, during the fifth day of jury deliberations, Judge Ahn held five court proceedings that were not open to the public, with the prosecutor, defense counsel, and Deedy to address matters relating to the jury. Following the last of these proceedings, the circuit court sealed the portions of the transcript that pertained to these court sessions. A partial transcript of the August 26, 2013 proceedings, entitled " Partial Transcript of Proceedings," notes the first three proceedings as being " held under seal," with the times indicated:
[133 Hawai'i 487] o " (Proceedings held under seal from 10:35 to 10:48a.m.)" 
o " (Proceedings held under seal from 10:49 to 11:11 A.M.)" 
o " (Proceedings held under seal from 1:05 p.m. to 1:18 p.m.)" .
The partial transcript does not provide any context or background for these three proceedings, but some background information appears regarding the fourth and fifth court sessions.
The fourth proceeding occurred at the bench in the afternoon of August 26, 2013. Judge Ahn called the case in open court and informed the parties that the jury could not reach a verdict, and the jury did not believe further deliberations would be helpful.
[Circuit court]: Good afternoon to all of you. We've received a communication, No. 5, from the jury, and as a matter of record, the -- all other communications were answered with the consent of both counsel, and that communication reads:
We have unanimously voted that the jury does not have a verdict, and that further deliberations will not resolve our impasse.
I propose to bring the jury out, question them about this briefly. Anything more for the record?
[Defense counsel]: Yes, Your Honor. We'd like to be heard on this matter, please.
[Circuit court]: Yes.
[State]: Your Honor, if Mr. Hart intends to put on the record things that we have discussed which have been sealed, we would request that those same arguments also be sealed.
[Defense counsel]: Well, what I intend to put on the record, and hereby do, is Mr. Deedy's objection to taking a verdict of hopelessly deadlocked at this point, and the reason is that the issues that came up this morning, both in our meeting here in court and on our telephone conference on the record at 1:00, suggest that there is more that the Court can do.
After defense counsel objected to Judge Ahn's proposal to poll the jury about their impasse and the court's intention to declare the jury deadlocked, Judge Ahn conducted a bench conference with counsel.
[Circuit court]: All right. Mr. Hart, why don't you folks approach.
[Defense counsel]: All right.
The bench conference is referenced in the Partial Transcript with the notation " (Proceedings held under seal.)."
At the conclusion of the bench conference, Judge Ahn cleared the courtroom, resulting in a fifth court proceeding that was not open to the public:
Ladies and gentlemen, thank you for your patience. At this time, I'm going to ask everyone to leave this courtroom, including the electronic devices. You can wait right outside. This is not going to take all afternoon, I hope. All right? Including the lavaliers, et cetera.
The Petitioners were present in the courtroom at the time it was cleared but did not object to the closure. After the courtroom was cleared, the partial transcript reflects the notation " (Proceedings held under seal.)."
Later that afternoon, Judge Ahn reopened the courtroom, brought in the jury, polled the jurors regarding their communication that additional time would not permit them to reach a unanimous verdict, and declared a mistrial.
Except for the designation in the partial transcript and in the minutes that the proceedings were sealed, the record does not contain an oral or written order of the court sealing the transcript of the five proceedings. The record also does not indicate an objection [133 Hawai'i 488] by Deedy to the courtroom not being open to the public or the sealing of the transcript of these court proceedings.
B. The Petition
On September 6, 2013, the Petitioners filed the Petition for Writ of Prohibition and Writ of Mandamus (Petition). The Petitioners contended that each of the non-public proceedings on August 26, 2013 and the partial sealing of the August 26, 2013 transcript violated their First Amendment rights, and they were entitled to immediate and contemporaneous access to the sealed documents " to serve [their] function as a courtroom monitor for the public." The Petitioners asked this court to issue a writ of prohibition (1) prohibiting Judge Ahn from enforcing a purported order sealing any portion of the August 26, 2013 trial transcript, and (2) ordering the sealed portion of the August 26, 2013 transcript to be unsealed. The Petitioners also asked this court to issue a writ of mandamus ordering Judge Ahn to refrain from closing the courtroom and sealing documents in Deedy's re-trial, or in future criminal proceedings, without first providing notice, an opportunity to be heard, and specific factual findings indicating the reason for preventing public access to the proceedings.
On September 20, 2013, this court directed Judge Ahn, the State, and Deedy to answer the Petition.
Judge Ahn responded in her submission to this court that relief by extraordinary writ was not appropriate. First, Judge Ahn noted that neither the Honolulu Star-Advertiser nor Hawaii News Now objected to the courtroom closure at the time of closure and never moved to unseal any portion of the August 26, 2013 transcript in circuit court. Second, Judge Ahn contended that the law does not require notice each time a court proceeding is closed. Judge Ahn further contended that proceedings and communications between a judge and jury during jury deliberations are excepted from the press and the public's presumptive right of access to criminal trials. Finally, Judge Ahn maintained that this court lacked a full and complete record of the events that transpired in the courtroom to sufficiently address a claim of right of access in the First Amendment context.
The State's answer presented arguments similar to those presented by Judge Ahn. The State argued that the Petition was premature since relief had not been sought in the circuit court. Additionally, the State asserted that jury deliberations, including written juror communications, are private and confidential and not subject to public access. Finally, the State contended that trial courts have discretion to protect the judicial process and ensure that the orderly operation of court proceedings should not be encumbered in the manner proposed in the Petition.
Deedy filed a joinder to the Petition.
In an order filed October 16, 2013, this court permitted an amicus curiae brief to be filed on behalf of Peer News LLC, dba Civil Beat; LIN Television Corp., dba KHON; Hearst Television, Inc.; Hawai'i Public Radio; Stephens Media LLC, dba Hawai'i Tribune-Herald and dba West Hawai'i Today; Maui Time Productions, Inc., dba Maui Time Weekly; Hawai'i Reporter, Inc.; Hawai'i Professional Chapter, Society of Professional Journalists; Media Council Hawai'i; and The Reporters Committee for Freedom of the Press (collectively, Amici) in support of the Petition. Amici asked this court, in addition to granting the requested relief, to consider the broad context presented by the Petition and delineate specific procedures to be followed before a trial court may close proceedings in a criminal case.
C. Temporary Remand
On January 2, 2014, this court issued an order temporarily remanding the case to the circuit court (Order of Remand). The Order of Remand directed that the Petitioners file a request with the circuit court seeking access to the sealed portions of the transcript. The Order of Remand also allowed for filing of memoranda by the parties, and directed the circuit court to hold a hearing and file a written ruling.
[133 Hawai'i 489] The Petitioners filed a Motion to Unseal Sealed Portions of Transcript of August 26, 2013 Proceedings (Motion to Unseal) on January 13, 2014. The State filed its response to the Motion to Unseal on January 21, 2014, and the Petitioners timely filed a reply. On January 29, 2014, Deedy filed a statement of no opposition to the Motion to Unseal.
On February 10, 2014, the circuit court held a hearing on the Motion to Unseal. During the hearing, the parties agreed that Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona was the proper test to be applied in determining whether the sealing of court records is warranted. The State requested that, in the event the circuit court released the transcript, the jurors' names be redacted because of a " chilling affect (sic) on picking a new jury." The Petitioners did not object to " that singular request," but entered a blanket objection " to the deletion of anything else without a full hearing, an opportunity to argue, and full findings and conclusions." The circuit court indicated that it had not yet made a decision whether to release the transcript, but it would file a written ruling within the 21-day deadline allowed by the Order of Remand.
On February 24, 2014, the circuit court issued an Order Granting in Part and Denying in Part Motion to Unseal Sealed Portions of Transcript of August 26, 2013 Proceedings (Partial Order to Unseal). The Partial Order to Unseal acknowledged that " the news media have a qualified right of access to judicial proceedings and records." Further, the order noted that " [a] transcript of any proceedings that have been closed . . . may be released when the danger of prejudice has passed and the factors militating in favor of closure no longer exist."
The Partial Order to Unseal explained the circuit court's actions, indicating the circuit court's " belief that necessary discussions between the [circuit court] and counsel, on the one hand, and deliberating jurors, on the other, traditionally and historically have been closed to the public[.]"
During these necessarily narrowly tailored discussions, the [circuit court] must avoid intruding upon or inquiring into the jury's deliberations, and must avoid exposing the individual jurors to anything that may in any way improperly influence their continuing decision-making processes.
The circuit court noted that requiring a juror to answer questions in front of family and friends of the Defendant, the alleged victim, and the news media could " expose a juror to pressure and matters which are not part of the evidence to be considered, but it also could hamper the [circuit court's] search for candid answers from that juror." The circuit court noted that privacy and security of the jurors and the importance of preserving an impartial jury to ensure a fair trial on behalf of both a defendant and the State, as the specific reasons supporting the closure:
For all of these reasons, in order to preserve a juror's privacy and security and the integrity of a fair and impartial jury decision based solely upon the trial evidence and the law provided by the Court, and to protect the right of both parties to a fair trial and verdict, public access would not play a significant positive role in the functioning of this process.
Therefore, the circuit court concluded that because " public access would not play a significant positive role," the closure of the courtroom and denial of public access to the transcript ...