Oahu Publications Inc. v. Ahn. , 133 Haw. 482 ( 2014 )

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Electronically Filed
Supreme Court
SCPW-13-0003250
16-JUL-2014
09:07 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
OAHU PUBLICATIONS INC., dba The Honolulu Star-Advertiser,
a Hawaiʻi corporation, and KHNL/KGMB, LLC, dba Hawaiʻi
News Now, a Delaware corporation, Petitioners,
vs.
THE HONORABLE KAREN S.S. AHN, Circuit Court
Judge of the Circuit Court of the First Circuit,
Respondent Judge,
and
THE STATE OF HAWAIʻI and CHRISTOPHER DEEDY, Respondents.
SCPW-13-0003250
ORIGINAL PROCEEDING
(CR. NO. 11-1-1647)
JULY 16, 2014
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
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OPINION OF THE COURT BY POLLACK, J.
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
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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
Hawaiʻi 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
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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:
• “(Proceedings held under seal from 10:35 to 10:48a.m.)”1
• “(Proceedings held under seal from 10:49 to 11:11 A.M.)”2
• “(Proceedings held under seal from 1:05 p.m. to 1:18
p.m.)”.3
1
The minutes on Hoohiki indicate that the proceeding was held in
chambers, Judge Ahn and counsel had a discussion “re: jury”, and the
transcript from the proceeding was sealed by the circuit court.
2
The minutes on Hoohiki indicate that the proceeding was held in
the courtroom, Judge Ahn and counsel had a discussion “re: jury”, and the
transcript from the proceeding was sealed by the circuit court.
3
The court’s minutes on Hoohiki indicate that the proceeding was
held via telephone conference in chambers, Judge Ahn and counsel had a
discussion “re: jury”, and the transcript from the proceeding was sealed by
the circuit court.
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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
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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
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not indicate an objection 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.
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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
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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.; Hawaiʻi Public Radio; Stephens Media LLC, dba
Hawaiʻi Tribune-Herald and dba West Hawaiʻi Today; Maui Time
Productions, Inc., dba Maui Time Weekly; Hawaiʻi Reporter, Inc.;
Hawaiʻi Professional Chapter, Society of Professional
Journalists; Media Council Hawaiʻi; 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
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for filing of memoranda by the parties, and directed the circuit
court to hold a hearing and file a written ruling.4
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.5 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
4
The Order of Remand also provided that the record in this case be
supplemented with the transcript of the above-ordered hearing and with all
documents filed in the circuit court in association with the remand. The
Petitioners were ordered to supplement the record in this case with a
transcript of the August 26, 2013 proceedings, “sealed” or “unsealed” as
ordered by the circuit court. Upon return of the case to this court, all
parties were provided with the option to file supplemental briefs. The Order
of Remand specified a timeline for each action.
5
In Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of
Arizona, the district court’s decision to deny media access to a transcript
of a closed hearing was reviewed by the Ninth Circuit Court of Appeals. 156
F.3d 940, 946-47 (9th Cir. 1998). The Ninth Circuit held that that a court
must complete procedural and substantive requirements before closing a
hearing and that a transcript of the closed hearing must be released when the
competing interests precipitating hearing closure are no longer viable.
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“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).6 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,
6
The Partial Order to Unseal stated “[t]he Court takes judicial
notice of the sealed portions of the transcript of the August 26, 2013,
proceedings.”
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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
of the closed proceedings was warranted.
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The Partial Order to Unseal also recognized that the
exigency of the situation had passed and that sealing the
transcript was no longer required.
Now that the initial jury has been discharged, a
substantial part of the [circuit court’s] . . . concerns no
longer apply.
The Partial Order to Unseal released the partially unsealed
transcript, noting that the identities of the jurors had been
redacted.
D. The Unsealed Transcript7
The unsealed transcript indicates that on August 26,
2013, during the fifth day of jury deliberations, the circuit
court, in five separate instances, conducted court proceedings
that were not open to the public to investigate potential juror
misconduct.8 The first proceeding took place in the judge’s
7
The portions of the transcript that were unsealed by the Partial
Order to Unseal were filed with this court on March 11, 2014, along with a
copy of the Partial Order to Unseal and the related motion, response, and
reply.
8
“Juror misconduct” does not necessarily mean a juror’s bad faith
or malicious motive, but means a violation of, or departure from, an
established rule or procedure for production of a valid verdict. Loving v.
Baker’s Supermarkets, Inc., 238 Neb. 727, 732 (1991). In Hawaiʻi, juror
misconduct may include bias, prejudice, passion, or misunderstanding of the
charge of the court on the part of the jury. HRS § 635-56 (1993).
This court has described juror misconduct as any action related
to the jury that may result in a denial of a defendant’s Sixth Amendment
right to a fair trial.
The sixth amendment to the United States Constitution and
article I, section 14 of the Hawaiʻi Constitution guarantee
the criminally accused a fair trial by an impartial jury.
If any juror was not impartial, a new trial must be
granted. However, not all juror misconduct necessarily
dictates the granting of a new trial. A new trial will not
(continued. . .)
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chambers from 10:35 to 10:48 a.m. The circuit court informed
counsel that the jury foreperson had approached her law clerk
with a concern regarding another juror. The court informed the
parties that the jury foreperson had asked Judge Ahn’s law
clerk, “‘What do we do if we feel one of the jurors is a friend
of one of the sides?’” The circuit court and the parties
discussed how to respond to the foreperson’s query.9 The court
indicated that it would bring the foreperson into the courtroom
to
ask [the foreperson] whether he said something to [the law
clerk] this morning and ask him what it was that he asked,
let him tell us what his question was, then I’m going to --
I’m going to tell him I cannot -- I don’t want to know
about your deliberation process or where -- what the jury
is thinking about now, or has been thinking about, but can
10
you tell me what you meant.
(Footnote added). The court also indicated that it would
instruct the foreperson not to discuss the questioning with his
fellow jurors.
8
(. . .continued)
be granted if it can be shown that the jury could not have been
influenced by the alleged misconduct. State v. Kim, 103 Hawaiʻi 285,
290-91, 81 P.3d 1200, 1205-06 (2003) (internal citations and quotations
removed).
9
The partially-redacted unsealed transcript does not refer to the
foreperson by name but does refer to the foreperson using male pronouns.
10
The court decided against questioning the foreperson in chambers
because the close proximity of the juror to the Defendant could be
“intimidating,” but had earlier indicated that it did not have a preference
whether the questioning took place in court or in chambers. Judge Ahn stated
“I don’t care, if you both agree that this [i.e. the courtroom] may be a
better setting, that’s fine with me.”
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The circuit court had prepared the courtroom for
closure: “We’ve already kind of put paper over the main doors in
the courtroom and the courtroom is locked, and I’ve contacted
public relations with the judiciary and I think she’s going to
tell the media that they can petition for a writ.11 The court
indicated its awareness that the closure was adverse to the
interests of the news media, stating “they know that they can—
they’re--you know, their relief is through a petition.”
This closed proceeding took place in the courtroom
from 10:49 to 11:11 a.m. During this session, the circuit
court, the State, and defense counsel questioned the foreperson.
The foreperson indicated that he was not sure how to bring his
concern to the court’s attention.
I just -- I wanted to know if –- like if we -- like if --
say if I think somebody might be, like, a friend of a
friend of the -- one of the sides, if, you know, like what
am I -- am I supposed to say something? Am I supposed to
bring it up in there?
The court then asked why the foreperson had asked that question.
The foreperson related that:
when we were -- you know, we always line up in the
hallways, so one day I seen somebody shake somebody’s hand
like they -- they knew them, you know, like, hey, how’s it,
blah-blah-blah. And then -- and then I noticed in the
courtroom that they were sitting on one side. And then
when I went to lunch . . . . and I noticed that day that
that individual was sitting with that -- with the family,
the person that shook the hand of the juror was -- was
eating lunch with the family.
11
The record does not indicate whether any media organizations were
informed of the closure by judiciary public relations personnel.
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The court then allowed counsel to question the
foreperson. Defense counsel attempted to ask whether the
foreperson had “any sense about whether the juror disclosed any
of these knowledges (sic) of the family or friends of the
family?” The question was objected to by the State.
The court did not rule on the objection, but in
response to the State’s objection, the foreperson appears to
have volunteered that he took the person with whom the juror
shook hands to be a “friend of a friend.”
That’s how I took it. I mean, it -- you know what I mean,
I -- I didn’t -- you know, I didn’t see him shake hands
with any of the family of either side or -- you know what I
mean, it was a -- you know, I just noticed that he shook
hands with one person, and it looked like that person was
friends of a family.
The foreperson was excused with instructions not to discuss what
had just occurred with any other juror. After counsel debated
the import of the foreperson’s observation, the foreperson was
brought back into the courtroom and asked to identify the juror
that shook hands with the third party.
The identified juror was then brought to the courtroom
and was asked by Judge Ahn, “[D]o you think you can be fair to
both sides?” The juror answered “Yes,” and Judge Ahn confirmed
“So you can be fair to both the government and the defense?”
The juror again answered affirmatively. No other questions were
asked. After the juror had exited, defense counsel indicated
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that the questioning of the juror was insufficient. The circuit
court rejected defense counsel’s concerns.
During the third proceeding, from 1:05 to 1:18 p.m.,
the circuit court, defense counsel and the State held a
conference in Judge Ahn’s chambers regarding the juror’s
handshake. Defense counsel asked the court to further question
the juror because of concerns that the jury would be deadlocked
11-1. “[I]f there, in fact, is going to be a deadlock, the
[circuit court] will have to determine whether there is manifest
necessity for the dismissal of the juror because they’re unable
to reach a verdict.” Defense counsel suggested that the circuit
court needed to get further answers.
[W]e don’t know enough about [the juror] to have a
confident answer to the question about whether or not [the
juror] had some undisclosed contact with people close to
one side or the other that the Court should’ve known about,
much the way it inquired of when he promptly and
responsibly raised his concern during the trial.
The State suggested that the handshake was likely innocuous.
Defense counsel replied that
shaking the hand of a juror while the juror’s waiting in
line is not something we see every day, and further inquiry
to make sure that we have truly a fair and impartial juror,
particularly in light of the timing that the jurors
reported their deadlock . . . suggests the basis for the
[circuit court] to inquire further. It may turn out to be
completely innocuous, in which case the record will reflect
that, or it may turn out to be more[.]
At the end of this session in chambers, the court did not
indicate that it would take any specific action.
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During the fourth proceeding, counsel and the circuit
court had a brief meeting at the bench. Defense counsel again
urged the court to make a further investigation into the
circumstances of the handshake. Defense counsel also suggested
that if the issue was not resolved and the juror was proved not
to be fair and impartial, it would present “potential double
jeopardy problems of the first order.” The State agreed, asking
the court to further question the juror. Counsel then debated
the scope of the additional questioning of the juror, and the
court decided to clear the courtroom.
In this fifth proceeding, the circuit court closed the
courtroom and further questioned the juror that shook hands with
the third party. The court asked the juror if he remembered
shaking hands with anyone while lined up with the jury, and the
juror indicated that he did. The juror stated that the person
with whom he shook hands was “just one guy I used to work with
. . . . I think like almost seven years ago.” The juror
indicated that the handshake did not “do anything to affect the
case or my judgment.” The juror was not directly asked if the
person with whom he shook hands was identified with the victim
or the victim’s family, but the juror was asked a question that
seemed to imply a relationship between the person with whom he
shook hands and with somebody in the case. The question was
phrased as follows:
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[Circuit court] Okay. And have you had any -- I just want
to ask this as a general question. Have you had any other
contacts or -- that -- with anyone who may be -- you think
may be associated with anybody in this case or any friends
or whatever have you?
[Juror] No, that was pretty much the only person that I’ve
seen, ‘cause then from when I leave court here, I usually
go straight to my [redacted]’s house and then either pick
[redacted] up from work or go straight home.
[Circuit court] Okay.
[Juror] So that was pretty much the only time, besides if
we go out eat or something, but besides me actually talking
to anybody or something, that was the only person.
[Circuit court] Okay. And after that one incident, did
you -- did you see this [redacted] again?
[Juror] I think he was here one other time, but I never
talked to him.
The juror was then excused to return to the jury. The State
noted that it was satisfied that under the Furutani standard,
the juror’s conduct did not rise to the level of substantial
prejudice.12 Defense counsel disagreed and took the position
that “more searching and further questioning should have been
pursued and both sides should have had an opportunity to
question [redacted] in a voir dire manner.” The record of the
five proceedings was then sealed.
The unsealed transcript does not indicate any
objection by Deedy to the five court proceedings not being open
12
In State v. Furutani, this court held that a defendant bears the
initial burden of making a prima facie showing of a deprivation of the right
to a fair trial that could substantially prejudice the defendant, but once a
rebuttable presumption of prejudice has been raised, the burden of proving
harmlessness is upon the prosecution. 76 Hawaiʻi 172, 181, 873 P.2d 51, 60
(1994).
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to the public or the sealing of the transcript of the
proceedings.
E. Supplemental Briefing
The respondent parties did not file a supplemental
brief.
The Petitioners timely filed a Supplemental Brief In
Support of Petition for Writ of Prohibition and Writ of Mandamus
on March 31, 2014. In the Supplemental Brief, the Petitioners
argue that despite the fact the circuit court unsealed the
transcript, “compelling reasons still exist for granting the
Petition.” The Petitioners assert that the unsealed August 26,
2013 transcript reveals that “there is no indication that any
part of the proceeding . . . should have been performed in
camera or that the transcript ever should have been sealed.”
The Petitioners contend that a “sealing order may only be
entered upon a showing of ‘extraordinary need’ and, furthermore,
must be ‘narrowly tailored’ . . . .” The Petitioners state that
in the present case, “there is no indication of any need, let
alone extraordinary need, for closing the proceedings and
sealing the transcripts.” The Petitioners assert that:
the issue at question—whether a single juror had passing
contact with a third party member of the public who was
never confirmed to be connected to any witness or party—
proved to be a trivial one that [the circuit court]
apparently concluded would not substantially prejudice the
jury deliberations.
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Therefore, the Petitioners conclude that there “was no
extraordinary need to seal the transcript of those proceedings.”
The Petitioners contend that the circuit court was required but
failed to consider alternatives to closure of the courtroom and
sealing the transcript such as redacting jurors’ names and other
identifying features, which the Petitioners note that the court
ultimately did. Lastly, the Petitioners maintain that any
legitimate reason to close the courtroom and seal the transcript
“vanished as soon as the Deedy trial concluded and the jurors’
duty ended.”
The Petitioners additionally contend that the release
of the transcript by the circuit court did not rectify the
underlying harm to the Petitioners. The Petitioners identify
the harms as: “the failure of [the circuit court] to provide the
Petitioners with notice, an opportunity to be heard, and a
detailed explanation of the necessity of closing the courtroom
before conducting five closed proceedings and sealing the
related portions of the transcript.” The Petitioners conclude
that “[t]hose harms cannot be remedied by tardy release of the
transcript, and this Court can and should exercise its mandamus
and prohibitory powers to order [the circuit court] to refrain
from future First Amendment violations.”
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II. Discussion
Our analysis begins with the rulings of the United
States Supreme Court that articulate a qualified public right of
access to trial proceedings under the First Amendment. Second,
we look to Hawaiʻi law to determine the extent to which our
Constitution and history pronounce similar rights of public
access to courtrooms. Third, we examine the minimum procedures
that must be observed in order to protect the public’s qualified
right of access. We then turn to the two concerns precipitated
in the current case: whether a public right of access applies to
midtrial examination of jurors regarding allegations of
misconduct, and under what circumstances the public has a right
of access to a transcript of a closed proceeding. As we address
each concern, we apply the principles elucidated to protect the
right of access of the public to the proceedings that took place
on August 26, 2013.13
13
Although we ultimately dismiss the writ of prohibition and deny
the writ of mandamus, this court has recognized an exception to mootness in
cases involving questions that affect the public interest and are capable of
repetition but evade review. Okada Trucking Co., Ltd. v. Bd. of Water
Supply, 99 Hawaiʻi 191, 196, 53 P.3d 799, 804 (2002). “Among the criteria
considered in determining the existence of the requisite degree of public
interest are the public or private nature of the question presented, the
desirability of an authoritative determination for the future guidance of
public officers, and the likelihood of future recurrence of the question.”
Id. at 196-97, 53 P.3d at 804-05. The phrase “capable of repetition, yet
evading review” means that a case will not be moot “where . . . the passage
of time would prevent any single plaintiff from remaining subject to the
restriction complained of for the period necessary to complete the lawsuit.”
Id.; see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980)
(holding that, “more often than not” criminal trials will be of sufficiently
short duration that a closure order will evade review). Here, the likely
(continued. . .)
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A.
“Congress shall make no law . . . abridging the
freedom of speech, or of the press . . . .” U.S. Const. amend
I. “The right to attend criminal trials is implicit in the
guarantees of the first amendment.”14 Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 580 (1980). “Of course, this right
of access to criminal trials is not explicitly mentioned . . .
in the First Amendment.” Globe Newspaper Co. v. Superior Court
for Norfolk Cnty., 457 U.S. 596, 604 (1982). However, the First
Amendment is “broad enough to encompass those rights that, while
not unambiguously enumerated in the very terms of the Amendment,
are nonetheless necessary to the enjoyment of other First
Amendment rights.” Id.
The Supreme Court has noted that this qualified right
of access is based upon the “two complementary considerations”
of “logic and experience.” Press-Enter. Co. v. Superior Court
13
(. . .continued)
evasion of full review and the public interest criteria of the public nature
of the issue, the likelihood of recurrence, and the desirability of an
authoritative determination are demonstrably evident. Therefore, the instant
case falls within the exception to the mootness doctrine and we address the
merits of the Petitioners’ arguments.
14
“[M]any of the advantages of public criminal trials are equally
applicable in the civil trial context.” Gannett Co., Inc. v. DePasquale, 443
U.S. 368, 387 n.15 (1979). “For many centuries, both civil and criminal
trials have traditionally been open to the public . . . . While the operation
of the judicial process in civil cases is often of interest only to the
parties in the litigation, this is not always the case. . . . Thus, in some
civil cases the public interest in access, and the salutary effect of
publicity, may be as strong as, or stronger than, in most criminal cases.”
Id.
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of Cal. for Riverside Cnty., 478 U.S. 1, 8 (1986) (Press-
Enterprise II); Globe Newspaper Co., 457 U.S. at 606. Under the
“experience” consideration, a right of the public to attend
trials relies on “whether the place and process have
historically been open to the press and general public” because
a “‘tradition of accessibility implies the favorable judgment of
experience[.]’” Press-Enterprise II, 478 U.S. at 8 (quoting
Richmond Newspapers, 448 U.S. at 589 (Brennan, J., concurring).
Under the “logic” consideration, the right of the public to
attend a criminal proceeding relies on whether “public access
plays a significant positive role in the functioning of the
particular process in question.” Press-Enterprise II, 478 U.S.
at 8.
The value of openness lies in the fact that people not
actually attending trials can have confidence that
standards of fairness are being observed; the sure
knowledge that anyone is free to attend gives assurance
that established procedures are being followed and that
deviations will become known.
Press-Enter. Co. v. Superior Court of Cal., Riverside Cnty., 464
U.S. 501, 508 (1984) (Press-Enterprise I), (citing Richmond
Newspapers, 448 U.S. at 569-71). If a criminal proceeding
fulfills the logic and experience considerations, a qualified
First Amendment right of access attaches to that proceeding.
The qualified First Amendment right of access has been
held by the Supreme Court to attach to criminal trials during
the evidence and testimony-taking phase, Richmond Newspapers,
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448 U.S. at 580; criminal trials involving minor victims, Globe
Newspaper Co., 457 U.S. at 606; voir dire of potential jurors,
Press-Enterprise I, 464 U.S. 501, 505 (1984); and the extensive
preliminary hearings of the type utilized in California. Press-
Enterprise II, 478 U.S. at 10.
B.
Similar to the federal constitution, the Hawaiʻi
Constitution provides that “[n]o law shall be enacted . . .
abridging the freedom of speech or of the press[.]” Haw. Const.
art. I, § 4. “In interpreting and applying article I, section 4
of the Hawaiʻi Constitution, this court considers the case law
established under the [F]irst [A]mendment to the United States
Constitution.” In re Haw. Gov’t Employees Ass’n, AFSCME, Local
152, AFL-CIO, 116 Hawaiʻi 73, 84, 170 P.3d 324, 335 (2007).
“Effectively, the language of federal and Hawaiʻi constitutional
free speech provisions is identical” but “this court may find
that the Hawaiʻi Constitution affords greater free speech
protection than its federal counterpart.” Crosby v. State Dep’t
of Budget & Fin., 76 Hawaiʻi 332, 340 n.9, 876 P.2d 1300 n.9
(1994), State v. Rodrigues, 128 Hawaiʻi 200, 203 n.8, 286 P.3d
809, 812 n.8 (2012). Therefore, article I, section 4 of the
Hawaiʻi Constitution encompasses at least as much protection of
the right of the public to access criminal trials as has been
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found by the United States Supreme Court in the First Amendment
to the United States Constitution.
Hawaiʻi’s courts have a long tradition of accessibility
by the public; the legal framework utilized by the alii
transitioned from the kapu system to the use of public trials by
jury during the 1820s.15 Sally Engle Merry, Colonizing Hawaiʻi:
The Cultural Power of Law 70 (2000). Queen Liliʻuokalani
reported that during her trial by a military tribunal in
February 1895 the courtroom was “crowded with curious
spectators.” Liliuokalani, Hawaiʻi’s Story by Hawaiʻi’s Queen
279 (1990). The Queen’s trial was “open and well attended, and
was covered in the daily press.” Jon M. Van Dyke & Paula
Henderson, The Trial of Liliʻuokalani, in Trial of a Queen: 1895
Military Tribunal (Hawaiʻi State Judiciary 1996).16 Similarly,
the “Massie” case, a 1932 high profile murder case that made
headlines across the country was attended by a "standing-room-
only crowd of spectators.” David Stannard, The Massie case:
Injustice and Courage, The Honolulu Advertiser.com (Oct. 14,
15
The kapu system was an unwritten “traditional code consisting of
regulations promulgated by former kings or followed by general consent” that
“regulated relations between [the commoners] and the aliʻi.” Sally Engle
Merry, Colonizing Hawaiʻi: The Cultural Power of Law 55 (2000). “Aliʻi” means
a chief, chiefess, ruler, monarch, or king. Mary Kawena Pukui & Samuel H.
Elbert, Hawaiian Dictionary 20 (1986). “Kapu” means a taboo or prohibition.
Id. at 132.
16
Queen Liliʻuokalani’s trial is reflective of a tradition of public
proceedings even though as a military tribunal, it is not a part of the
tradition of this court.
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2001), http:// the.honoluluadvertiser.com/article/2001/Oct/14/
op/op03a.html (last visited May 1, 2014).
This court has recognized a tradition of public
access, declaring it “firmly embedded in our system of
jurisprudence” as a “general policy of open trials.” Gannett
Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54
(1978). Open courts are a fundamental component of our system
of law: “[c]ourts are established for the judicial
administration of justice. They are open to the public . . . .
The fact that they are open serves as a safeguard of the
integrity of our courts.” State v. Hashimoto, 47 Haw. 185, 200,
389 P.2d 146, 155 (1963). “The corrective influence of public
attendance at trials for crime [i]s . . . important to the
liberty of the people.” Territory v. Scharsch, 25 Haw. 429, 436
(1920). “The words ‘public trial’ are self-explanatory.”
Hashimoto, 47 Haw. at 200, 389 P.2d at 155. “[A] public trial
is a trial at which the public is free to attend.” Scharsch, 25
Haw. at 436.
In Gannett Pac. Corp., we addressed a petition by a
local newspaper to prevent the closure of a preliminary hearing
in a criminal trial upon a motion by the defendant. The trial
court had granted the defendant’s motion to close the
preliminary hearing due to concerns regarding the defendant’s
Sixth Amendment right to a fair trial. Id. at 236, 580 P.2d at
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52. This court prohibited the trial court from closing the
hearing. Id. at 226, 580 P.2d at 52.
Gannett Pac. Corp. explicitly recognized a qualified
right of access to criminal trial proceedings.
Whether and to what extent preliminary hearings may be
closed to the public is a question of grave import, for it
involves not only the right of the accused to be tried by
an impartial jury, but it also has a vital relevancy to the
right of the public to attend and to be present at judicial
proceedings.
Id. at 227, 580 P.2d at 53 (emphasis added). “There will be
situations, however, where this right of the public to know must
yield to the overriding requirements of due process.” Id. at
230, 580 P.2d at 55.
On the same day that Gannett Pac. Corp. was decided,
this court also decided Honolulu Advertiser, Inc. v. Takao, 59
Haw. 237, 580 P.2d 58 (1978). The Takao case referred to the
decision in Gannett Pac. Corp. and its description of the public
right of access. “We are also not here concerned with the
public’s right to be present and to attend judicial proceedings
as we were in [Gannett Pac. Corp.].” Takao, 59 Haw. at 238, 580
P.2d at 60. “In [Gannett Pac. Corp.], we held that except under
certain rare and compelling circumstances, courtroom proceedings
shall be open to the public.” Id. (emphasis added).
The question of whether the First Amendment was
implicated in the public right of access was not decided by
Gannett Pac. Corp. This court only responded to the question of
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whether the press had a unique right of access to public trials,
above and beyond that of the public. The court concluded that
under the circumstances there was “no such denial” of the “First
Amendment right of freedom of the press” because the “closure
[of the preliminary hearing] was directed at the public at large
and was not limited to the representatives of the news media.”
Gannett Pac. Corp., 59 Haw. at 229, 580 P.2d at 54 (emphasis
added). “The right of media representatives to be present
[during court proceedings] is derived from their status as
members of the general public . . . they occupy no privileged
position vis-a-vis the general public.” Gannett Pac. Corp., 59
Haw. at 229-30, 580 P.2d at 54-55.
Therefore, Gannett Pac. Corp.’s holding regarding a
right of access to criminal trials as derived from the First
Amendment is limited to a determination that the press does not
have a unique First Amendment right of access beyond that held
by the general public.17 However, to the extent that Gannett
17
The court in Gannett Pac. Corp. based its finding of “no . . .
denial” of a First Amendment right on the priority of the Sixth Amendment
right to a fair trial by an impartial jury over the general policy of
openness. Gannett Pac. Corp., 59 Haw. at 232, 580 P.2d at 56 (“The right to
trial by an impartial jury is fundamental.”). The court found the issue of
closure was best left to the discretion of the court to balance the
defendant’s right to a fair trial with “this jurisdiction’s policy of
openness in judicial proceedings.” Id. at 233, 580 P.2d at 56-57. “The
fundamentals of a fair trial ought to require no less than that highly
prejudicial information, which would not be admissible at trial, should be
kept, if possible, from the eyes and ears of prospective jurors.” Id. This
court found that in order to close a courtroom, the presiding judge must find
that there is a “substantial likelihood that an open hearing . . . would
interfere with the defendant’s right to a fair trial by an impartial jury.”
(continued. . .)
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Pac. Corp. declined to expressly recognize the public’s right of
access in terms of the protection of the First Amendment, this
restricted application has been superseded by the decisions of
the United States Supreme Court. We have already noted the
significant tradition in Hawaiʻi of maintaining open court
proceedings. Furthermore, the benefits identified by the
Supreme Court under the “logic” prong as to the significant
positive role played by public access is equally applicable in
Hawaiʻi. See Press-Enterprise II, 478 U.S. at 8; Press-
Enterprise I, 464 U.S. at 508. Therefore, we hold that article
1, section 4 of the Hawaiʻi Constitution provides the public with
a qualified right of access to observe court proceedings in
criminal trials.18
17
(. . .continued)
Id. at 233, 580 P.2d at 56-57 (emphasis added). To determine whether the
likelihood was substantial
the district judge shall consider [1] the nature of the
evidence sought to be presented; [2] the probability of
such information reaching potential jurors; [3] the likely
prejudicial impact of this information upon prospective
veniremen; and [4] the availability and efficacy of
alternative means to neutralize the effect of such
disclosures.
Id. at 233-34, 580 P.2d at 57. This court then found that “[j]udged by the
standards we have established, however, there was an insufficient basis for
[the trial court’s] closure order.” Id. at 235, 580 P.2d at 58.
18
“[T]he reasons underlying openness in the criminal context, as
enunciated in [Gannett Pac. Corp.], are equally compelling in the civil
context.” In re Estate of Campbell, 106 Hawaiʻi 453, 462, 106 P.3d 1096, 1105
(2005).
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C.
“Although the [First Amendment] right of access to
criminal trials is of constitutional stature, it is not
absolute.” Globe Newspaper Co., 457 U.S. at 606. Exceptions to
the general rule presuming openness of criminal trials must be
limited and to preserve compelling interests. “Closed
proceedings, although not absolutely precluded, must be rare and
only for cause shown that outweighs the value of openness.”
Press-Enterprise I, 464 U.S. at 501. “[T]he circumstances under
which the press and public can be barred from a criminal trial
are limited; the State’s justification in denying access must be
a weighty one.” Globe Newspaper Co., 457 U.S. at 606.
Therefore, the qualified right of public access
provided by the First Amendment and article 1, section 4 can be
overcome “only by an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly
tailored to serve that interest.” Press-Enterprise I, 464 U.S.
at 510 (emphasis added); Press-Enterprise II, 478 U.S. at 9-10;
see also Globe Newspaper Co., 457 U.S. at 606-07 (“Where . . .
the State attempts to deny the right of access in order to
inhibit the disclosure of sensitive information, it must be
shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
interest”). The trial court must articulate the interest the
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closure protects, “along with findings specific enough that a
reviewing court can determine whether the closure order was
properly entered.” Press-Enterprise I, 464 U.S. at 510; Press-
Enterprise II, 478 U.S. at 10.
Additionally, if the court is contemplating whether
closure of the courtroom is necessary, it must provide a
reasonable opportunity for the public to object. “[T]he press
and the general public must be given an opportunity to be heard
on the question of their exclusion.” Globe Newspaper Co., 457
U.S. at 609 n.25 (citing Gannett Co., 443 U.S. at 401 (Powell,
J., concurring)). The requirement of notice continues to apply
when the compelling interest asserted is protection of the
defendant’s Sixth Amendment right to a fair trial by an
impartial jury. United States v. Brooklier, 685 F.2d 1162, 1168
(9th Cir. 1982); see also ABC, Inc. v. Stewart, 360 F.3d 90, 95
(2d Cir. 2004) (noting that no notice had been provided before
closure of voir dire in jury selection); In re S.C. Press Ass’n,
946 F.2d 1037, 1040 (4th Cir. 1991).
The United States Supreme Court has not explicated a
standard for notice. However, individual notice may be
practicable under certain circumstances.
Without adopting an inflexible rule, we believe that where
a closure motion is not filed of record or made in open
court, and when, as here, the court has been made aware of
the desire of specific members of the public to be present,
reasonable steps should be taken to afford such persons an
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opportunity to submit their views to the court before
exclusion is accomplished. 19
United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982)
(footnote added).20
If objections are made by those “actually present,”
the trial proceedings should be conducted to allow those
objecting to removal to be heard before a closure order is
entered. United States v. Raffoul, 826 F.2d 218, 226 (3d Cir.
1987). Further, the courtroom shall not be closed except upon
the court’s order. Id. Written motions for closure should be
docketed immediately. Id. Motions for closure made outside the
public’s hearing should be renewed in open court before being
acted upon. Id.
19
To the extent practicable, a reasonable attempt should be made to
notify entities or persons who have requested “Extended Coverage” of a case.
Extended Coverage means any recording or broadcasting of proceedings through
the use of television, radio, photographic, or recording equipment by the
media or on behalf of educational institutions. Rules of the Supreme Court
of the State of Hawaiʻi (RSCH), Rule 5.1(c). Any person may request the court
to allow Extended Coverage. RSCH Rule 5.1(e). That rule designates that
“[w]hen more than one media representative requests extended coverage . . .,
the media collectively shall designate one representative to work with the
coordinator,” which may facilitate providing notice when contemplating
closure. RSCH Rule 5.1(e)(5).
20
But see Application of The Herald Co., 734 F.2d 93, 103 (2d Cir.
1984) (noting Brooklier, but holding that general public notice suffices to
afford an adequate opportunity to challenge a courtroom closure); Crowe v.
Cnty. of San Diego, 210 F. Supp. 2d 1189, 1191 (S.D. Cal. 2002) (noting
Brooklier, but declining to provide special notice to the press because the
court could see no reason why certain media organizations deserved special
notice and docket entry was reasonable); NBC Subsidiary (KNBC-TV), Inc. v.
Superior Court, 20 Cal. 4th 1178, 1217, 980 P.2d 337, 364-65 (1999) (noting
Brooklier, but holding that adequate notice of the contemplated closure is
provided if the trial judge announces in open court that he or she plans to
hold or to consider holding a proceeding in closed session or when a motion
seeking closure is made in a written filing that is publicly docketed
reasonably in advance of a determination hearing).
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The requirements that must be satisfied by a court in
order to overcome the qualified right of the public to access
criminal trials may be divided into procedural and substantive
elements. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of
Or., 920 F.2d 1462, 1466 (9th Cir. 1990). The “procedural
prerequisites to entry of an order closing a criminal proceeding
to the public [are] (1) those excluded from the proceeding must
be afforded a reasonable opportunity to state their objections;
and (2) the reasons supporting closure must be articulated in
findings.” Brooklier, 685 F.2d at 1167-68. The substantive
reasons that must be found and included in the findings are:
“(1) [the] closure serves a compelling interest; (2) there is a
substantial probability that, in the absence of closure, this
compelling interest would be harmed; and (3) there are no
alternatives to closure that would adequately protect the
compelling interest.” Oregonian Pub., 920 F.2d at 1466 (citing
Press–Enterprise II, 478 U.S. at 13–14).
The procedural and substantive safeguards of the
public’s right of access “are not mere punctilios, to be
observed when convenient.” Phoenix Newspapers, Inc. v. U.S.
Dist. Court for Dist. of Ariz., 156 F.3d 940, 951 (9th Cir.
1998). Those safeguards
provide the essential, indeed only, means by which the
public’s voice can be heard. All too often, parties to the
litigation are either indifferent or antipathetic to
disclosure requests. This is to be expected: it is not
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their charge to represent the rights of others. However,
balancing interests cannot be performed in a vacuum. Thus,
providing the public notice and an opportunity to be heard
ensures that the trial court will have a true opportunity
to weigh the legitimate concerns of all those affected by a
closure decision. Similarly, entry of specific findings
allows fair assessment of the trial judge’s reasoning by
the public and the appellate courts, enhancing trust in the
judicial process and minimizing fear that justice is being
administered clandestinely.
Id. (emphasis added). The procedural protections of the First
Amendment and article 1, section 4 right of access to criminal
procedures are critical to inform the affected party, i.e. the
public, that their rights are in imminent danger. Therefore,
the standards promulgated by the United States Supreme Court
place the responsibility on the trial court to provide notice
that a compelling interest may necessitate closure of a
proceeding, and afford an opportunity for the public to be
heard. Requiring specific findings on the record enables the
trial court to address each element necessary for closure and
allows an appellate court to review the reasoning of the trial
judge to ensure that protection of the public right was
adequately considered.
D.
In determining whether a constitutional right of
access is applicable to a particular portion of a trial
proceeding not yet decided by the Supreme Court, courts have
examined whether experience and logic indicate that the
proceeding should be open. Once such a right is implicated, any
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closure or limitation of access must demonstrate compliance with
the prescribed procedural and substantive requirements. We
first address the midtrial examination of jurors, and second,
the sealing of a transcript of closed proceedings.
1.
When the proceeding at question is, as in this case,
the examination of jurors during a criminal trial in order to
investigate potential juror misconduct, the defendant’s Sixth
Amendment right to an impartial jury may be implicated and may
conflict with the right of access of the public. “In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed[.]” U.S.
Const. Amend. VI. The Hawaiʻi Constitution provides similar
protection: “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial by an impartial
jury of the district wherein the crime shall have been
committed[.] Haw. Const. art. I, § 14.
The conflict between the public’s right of access and
the defendant’s Sixth Amendment right to a fair trial by an
impartial jury arises because in contrast to the benefits of
open trials, jury deliberations require privacy. It is a
“cardinal principle that the deliberations of the jury shall
remain private and secret[.]” United States v. Olano, 507 U.S.
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725, 737 (1993). “[P]ublic policy demands that the sanctity of
jury deliberations be vigorously guarded to ensure frankness and
open discussion.” State v. Kim, 103 Hawaiʻi 285, 292, 81 P.3d
1200, 1207 (2003).
The purpose for providing secret deliberations is to
ensure the impartiality of the jury. The Supreme Court “has
long recognized that adverse publicity can endanger the ability
of a defendant to receive a fair trial.” Gannett Co., 443 U.S.
at 378.
Compelling governmental interest in the integrity of jury
deliberation requires that the privacy of such
deliberations and communications dealing with them be
preserved. Confidentiality is a shield against external
considerations entering into the deliberative process.
Such a shield prevents undermining of the integrity of the
jury system. Juries must be permitted to deliberate fully
and freely, unhampered by the pressures and extraneous
influences which could result from access by the press to
the deliberative process.
United States v. Gurney, 558 F.2d 1202, 1210-11 (5th Cir. 1977)
(emphasis added).
The right to a trial by an impartial jury is
fundamental. Gannett Pac. Corp., 59 Haw. at 232, 580 P.2d at
56. Where a defendant’s right to an impartial jury may be
compromised by the possibility of external interference with
jury deliberations or juror misconduct, the court has a duty to
act.
Where the trial court determines that the juror misconduct
could substantially prejudice the defendant’s right to a
fair and impartial jury, a rebuttable presumption of
prejudice is raised and the court must investigate the
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totality of circumstances to determine if the misconduct
impacted the jury’s impartiality.
State v. Yamada, 108 Hawaiʻi 474, 479, 122 P.3d 254, 259 (2005)
(emphasis added). When a court investigates allegations of
juror misconduct pursuant to its duty to protect a defendant’s
right to an impartial jury, its actions constitute trial
proceedings, and rights of public access under the First
Amendment and article 1, section 4 may attach. See Richmond
Newspapers, 448 U.S. at 580 (holding that the right to attend
criminal trials is implicit in the guarantees of the First
Amendment). Therefore, that right of public access to observe
criminal trials is potentially in conflict with the policy of
protecting the integrity of jury deliberations in furtherance of
a defendant’s right to an impartial jury. Thus, we must examine
if considerations of tradition and logic provide a qualified
First Amendment right of public access to midtrial examination
of jurors to investigate potential juror misconduct.
a.
There is no clear tradition of closing a courtroom in
Hawaiʻi to conduct midtrial examination of jurors in order to
investigate juror misconduct. No Hawaiʻi case has ever upheld
the closure of a court proceeding during trial.21 Closure has
21
But cf. State v. Swanson, 112 Hawaiʻi 343, 355, 145 P.3d 886, 898
(App. 2006) (concluding that defendant’s constitutional rights to a public
trial were not implicated when the jury returned its verdict after normal
(continued. . .)
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been invalidated based on various grounds. See Gannett Pac.
Corp., 59 Haw. at 235, 580 P.2d at 58; State v. Ortiz, 91 Hawaiʻi
181, 981 P.2d 1127 (1999) (holding that when a defendant invokes
his Sixth Amendment right to a public trial, the court may only
close the courtroom under the strict test set forth in Waller v.
Georgia, 467 U.S. 39 (1984))22; In re Estate of Campbell, 106
Hawaiʻi 453, 454, 106 P.3d 1096, 1097 (2005) (holding that a
common law presumption of judicial openness accompanies probate
proceedings that may be overcome only upon a showing of strong
countervailing reasons that outweigh the public’s presumptive
right of access to court proceedings and records). Furthermore,
21
(. . .continued)
business hours, when the courthouse was closed to the public, because the
closure was too trivial to implicate the constitutional guarantees); Freitas
v. Admin. Dir. of Courts, 104 Hawaiʻi 483, 486, 92 P.3d 993, 996 (2004)
(declining to extend First Amendment rights of access to administrative
hearings).
22
In Waller, the Supreme Court considered the extent of the
accused’s Sixth Amendment rights at trial. Waller, 469 U.S. at 44. Waller
states that “the right to an open trial may give way in certain cases to
other rights or interests[.]” Id. at 45. Based on Press-Enterprise I,
Waller articulated a four-part test:
[1] the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, [2]
the closure must be no broader than necessary to protect
that interest, [3] the trial court must consider reasonable
alternatives to closing the proceeding, [4] and it must
make findings adequate to support the closure.
Id. at 48. In Ortiz, this court addressed the necessary evaluation a court
must apply when a defendant objects to closure of courtroom proceedings that
a court deems may be necessary to protect a defendant’s Sixth Amendment
rights. Ortiz adopted Waller’s four-part test and applied it to determine
whether the courtroom was properly closed to the defendant’s relatives and
girlfriend over the defendant’s objection. Ortiz, 91 Hawaiʻi at 191, 981 P.2d
at 1137. This court found that the trial court’s actions had violated the
defendant’s right to a public trial. Id. at 193, 981 P.2d 1139.
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no Hawaiʻi case involving individualized voir dire of jurors;
that is, examination of jurors outside the presence of the other
jurors, contains any indication that the voir dire was conducted
in closed proceedings.23
The Fifth Circuit Court of Appeals has held that a
court may close a courtroom without a pre-closure hearing for
midtrial examination of jurors regarding misconduct. U.S. v.
Edwards, 823 F.2d 111, 117 (5th Cir. 1987) (discussed infra).
However, that case explicitly relied on “functional
consideration[s] for an answer” rather than historical
precedent.24 Id. at 117. Additionally, in the past quarter-
century since Edwards was decided, few cases have relied upon
its approach.
One such case is State v. Halverson, 309 P.3d 795
(Wash. Ct. App. 2013), where the trial court questioned a juror
“in chambers, off the record,” during deliberations without the
presence of the defendant. Halverson, 309 P.3d at 796. The
decision in Halverson upheld in camera examination of jurors
outside of the defendant’s presence based on “historical
23
See State v. Ho, 131 Hawaiʻi 59, 314 P.3d 849 (App. 2013); State
v. Keohokapu, 127 Hawaiʻi 91, 95, 276 P.3d 660, 664 (2012); State v. Mark, 120
Hawaiʻi 499, 521, 210 P.3d 22, 44 (App. 2009); State v. Pauline, 100 Hawaiʻi
356, 369, 60 P.3d 306, 319 (2002); Ortiz, 91 Hawaiʻi at 186, 981 P.2d at 1132.
24
Edwards does not define “functional,” but the court examined the
deliberative process and hypothesized how open proceedings could disrupt that
process. Edwards, 823 F.2d at 117. Therefore, in this context “functional”
means the operations or process of a working jury.
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practices in Washington” and reliance upon Edwards. Id. at 797-
98. However, Halverson represents a significantly different
historical tradition than that of Hawaiʻi, as our law does not
allow a judge to question a juror about potential misconduct
without the defendant present. State v. Estrada, 69 Haw. 204,
226, 738 P.2d 812, 827-28 (1987) (holding that the judge’s ex
parte entry into the jury room and extended explanations in
response to jury questions was improper).25 A defendant in a
criminal case has a procedural and constitutional right to be
present whenever the court communicates with the jury. State v.
Pokini, 55 Haw. 640, 651, 526 P.2d 94, 105 (1974).
We also note that the Ninth Circuit permitted closure
of a courtroom in order to address jurors’ concerns regarding
their safety due to the attendance at the trial of some
“intimidating” individuals. United States v. Ivester, 316 F.3d
955, 960 (9th Cir. 2003). The Ivester court first noted that
“[h]ad the district court decided to question [the juror] in
chambers without the defendant or spectators, we would conclude
that there were no constitutional violations,” id. at 959,
which, as noted, is contrary to our law. Additionally, the
25
The Estrada court exercised its supervisory powers to declare a
judge’s practice of personally entering the jury room to answer the jurors’
questions improper and prejudicial. Estrada, 69 Haw. at 228, 738 P.2d at
828. “In either a criminal or civil context, defendants are entitled to a
fair and impartial jury trial free from prejudicial ex parte influences.”
Id.
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court characterized the assurances made to the jury in the
closed courtroom not as a constitutional concern but as an
administrative matter: “questioning the jurors to determine
whether they felt safe is an administrative jury problem.” Id.
at 960. Thus, a significant reason Ivester found no
constitutional violation in the closure of the courtroom was
because juror misconduct was not at issue, and the defendant’s
right to a fair trial was not implicated. Id. Ivester does not
hold that the examination of a juror concerning a fair trial may
be addressed outside the presence of the public.26 Id.
Therefore, Edwards and the few cases that rely on its
holding provide weak support for a tradition of closing
courtroom proceedings to conduct midtrial examination of jurors
to investigate potential juror misconduct.27
26
Matters directly impacting the security or safety of jurors might
appropriately be addressed in closed proceedings, but only where revealing
the information publicly could frustrate efforts to protect jurors, and a
transcript of the proceeding remains sealed only for so long as necessary.
See section II.D.2, infra.
27
The Third Circuit has expressed a “general” preference, for
individual, in camera, questioning of a possibly-tainted juror, “[w]here
there is a significant possibility that a juror or potential juror has been
exposed to prejudicial extra-record information.” Gov’t of V.I. v. Dowling,
814 F.2d 134, 137 (3d Cir. 1987) (declining to find error in the en banc
examination of jurors regarding potential misconduct). However, the cases
cited by Dowling do not discuss the issue of public access to midtrial
examination of jurors. See United States ex rel. Doggett v. Yeager, 472 F.2d
229, 239 (3d Cir. 1973) (reversing a finding of no prejudice to the defendant
by external information in part because the court examined jurors as a panel
rather than individually); United States v. D’Andrea, 495 F.2d 1170, 1173 n.8
(3d Cir. 1974) (finding no prejudice to defendant from external information
and noting that “cases will arise where en banc examination [of jurors
concerning potential misconduct] is preferable and should be permitted[.]”);
United States v. Starks, 515 F.2d 112, 125 (3d Cir. 1975) (finding no abuse
(continued. . .)
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In contrast, courts have found that pretrial and post-
trial examination of jurors should be held open to the public.
See Press-Enterprise I, 464 U.S. at 510 (pretrial voir dire of
potential jurors); accord Stewart, 360 F.3d at 98 (same); United
States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994) (post trial
hearings to investigate juror misconduct); Barber v. Shop-Rite
of Englewood & Assocs, Inc., 923 A.2d 286, 291-92 (N.J. Super.
Ct. App. Div. 2007) (same).
In Simone, the Third Circuit Court of Appeals applied
the experience and logic test to its analysis of post-trial
examination of jurors and found no clear history of openness or
closure. Simone, 14 F.3d at 838. Accordingly, the court
concluded that “on the whole, the ‘experience’ prong of the
‘logic and experience’ test provides little guidance in this
case.” Id. Therefore, Simone “rel[ied] primarily on the
‘logic’ prong of the [experience and logic] test.” Simone, 14
27
(. . .continued)
of discretion in refusing to examine jurors in camera regarding potential
misconduct, but generally recommending examination outside the presence of
other jurors); see also United States v. Addonizio, 451 F.2d 49, 67 (3d Cir.
1971) (discussing examination of prospective jurors and recommending
examination outside the presence of other jurors under certain
circumstances); Gov’t of the V.I. v. Rosado, 699 F.2d 121, 125 (3d Cir. 1983)
(same). Therefore, Dowling and its associated cases do not stand for the
proposition that midtrial examination of jurors should be held outside the
presence of the public because those cases discuss the need to keep juror
testimony from other jurors, but do not address the issue of public access.
Furthermore, those cases do not establish a tradition of closing proceedings
to conduct such an examination, because in each case reviewed by the Third
Circuit the examination of jurors or prospective jurors took place in open
court.
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F.3d at 838. See also United States v. Criden, 675 F.2d 550,
555 (3d Cir. 1982) (finding historical analysis irrelevant, and
examining the issue of first amendment access to pretrial
hearings in terms of the “current role of the [F]irst
[A]amendment and the societal interests in open pretrial
criminal proceedings”); Barber, 923 A.2d at 291-92 (“Given that
there is no absolute right of access to a civil trial and that
there is no history of reported and sanctioned public access to
post-verdict civil jury voir dire concerning juror misconduct,
the first prong of the [experience and logic] test provides
little guidance.”) (emphasis added).
In light of Hawaiʻi’s case law and our firmly embedded
general policy of open trials and with very minimal case
authority supporting closure, there is no clear tradition of
either open or closed proceedings when a court conducts a
midtrial examination of jurors regarding potential misconduct.
On the other hand, even assuming there is no tradition of
holding such proceedings in open court, it cannot be said that
there is a tradition in Hawaiʻi’s courts of preventing public
access to midtrial examination of jurors. Therefore, we
conclude that the experience prong of the “logic and experience”
test provides little guidance in this case and it is appropriate
to give greater weight to the “logic prong” of the tradition and
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logic test. See Simone, 14 F.3d at 838, Criden, 675 F.2d at
555, Barber, 923 A.2d at 291-92.
b.
Under the “logic” consideration, the right of the
public to attend a criminal proceeding relies on whether “public
access plays a significant positive role in the functioning of
the particular process in question.” Press-Enterprise II, 478
U.S. at 8. The United States Supreme Court has identified six
“societal interests” that are advanced by open proceedings, all
of which are present in this case. See Richmond Newspapers, 448
U.S. at 569-572; Criden, 675 F.2d at 556 (referring to the
considerations under the logic prong as “societal interests”).
The first societal interest advanced by public access
to criminal proceedings is that access promotes informed
discussion of governmental affairs by providing the public with
a more complete understanding of the judicial system, serving an
“educative” interest. See Richmond Newspapers, 448 U.S. at 572;
id. at 584 (Stevens, J., concurring); id. at 595-96 (Brennan,
J., concurring). A second societal interest advanced by open
proceedings is “assurance that the proceedings were conducted
fairly to all concerned” thereby promoting a “perception of
fairness.” Id. at 569, 570. Public confidence in and respect
for the judicial system can be achieved only by permitting full
public view of the proceedings. Id. at 595 (Brennan, J.,
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concurring). In the case of midtrial examination of jurors,
public access to such proceedings would educate the public on
the importance of an impartial jury. Further, an open
proceeding would provide assurance that the system is fair to
all concerned because it would ensure the public that
significant misconduct, if any, is being appropriately addressed
and managed.
Parallel to the educational benefits and the assurance
of fairness, public access to criminal proceedings also has a
“significant community therapeutic value” because it provides an
“outlet for community concern, hostility, and emotion.”
Richmond Newspapers, 448 U.S. at 570-71. Societal interest in
open proceedings is especially high in a newsworthy case where
the public has already been following the progress of a
proceeding through news reports and other media, or the case
otherwise resonates as significant in the community. Where the
public has made a significant investment of interest and
attention in a case or proceeding, closing a portion of the
proceeding will undoubtedly breed concern and result in
unbridled speculation, whereas open proceedings will resolve
such concerns. It is noted that the various circumstances in
the present case resulted in significant public attention.
Open proceedings also advance a fourth societal
interest by serving as a check on “the misconduct of
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participants” by exposing the judicial process to public
scrutiny, thus discouraging decisions based on secret bias or
partiality. See id. at 569 (plurality opinion). The fifth
societal interest advanced by public observation is that public
access enhances the performance of all involved. See id. at 569
n.7. Opening the examination process to public scrutiny assures
the public of the integrity of the participants in the system,
and elevates confidence in the judicial process by providing
greater transparency. The final societal interest, also
implicated in the present case, is that public access to
criminal proceedings discourages perjury. See id. at 596-97
(Brennan, J., concurring). Public observation of juror
examination will discourage perjury because members of the
public who might be able to contradict false testimony will not
learn of that testimony unless the proceedings are open to the
public.
Moreover, there does not appear to be any policy-based
justification for an across-the-board denial of the First
Amendment right of access to the narrow category of midtrial
inquiries into jury misconduct. It is apparent that in the vast
majority of criminal cases a need for a midtrial examination of
a juror for potential misconduct will not arise, and only in a
small portion of those cases when the need does arise will any
of the risks associated with a high profile case involving
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extensive media coverage be present. Thus, a rule automatically
allowing closure of trial proceedings for midtrial questioning
is neither warranted nor justified in light of the requirements
of article I, sections 4 and 14 of the Hawaiʻi Constitution for a
public trial.28 Even in a high-profile case, it should not
automatically be assumed that midtrial juror questioning will
necessarily endanger a defendant’s right to a fair and impartial
jury.
We also find the reasons set forth in Edwards for its
holding that that there is no First Amendment right of the
public to attend midtrial questioning to be unpersuasive. See
Edwards, 823 F.2d at 117. The rationale of the Edwards’
decision is based upon the conclusion that an open court
proceeding would “substantially raise the risk of destroying the
effectiveness of the jury as a deliberative body” because the
28
An across-the-board rule allowing closure at the presiding
judge’s discretion would appear to be at odds with the ABA Principles for
Juries and Jury Trials. “Juror voir dire should be open and accessible for
public view . . . . Closing voir dire proceedings should only occur after a
finding by the court that there is a threat to the safety of the jurors or
evidence of attempts to intimidate or influence the jury.” Principals for
Juries and Jury Trials, Standard 7(A.1), ABA (August 2005) (available at
http://aja.ncsc.dni.us/conferences/2010Annual/SpeakerMaterials/44%20-
%20Mize%20ABA%20jury%20principles.pdf, last visited June 17, 2014) (emphasis
added). This standard “acknowledges that established law requires courts to
balance the privacy interests of jurors and the rights of litigants and the
public when determining whether to keep information touching on the private
lives of jurors out of the public domain . . . . [and is] designed to
establish a framework within which courts may balance those interests.” Id.,
cmt. Although the commentary indicates the standard is focused on jury
selection, id., the language of the standard does not restrict its
application to pretrial voir dire.
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examination places the attorney in conflict with the juror and
may create tension between members of the jury panel. Id.
However, Edwards’ rationale does not explain why a closed
proceeding would address this concern. See id. As Simone
pointedly observed, the Edwards’ court provides “little
explanation” for its conclusion that an open hearing would
“exacerbate” “[t]he deleterious effects” of the midtrial
examination. See Edwards, 823 F.2d at 117; Simone, 14 F.3d at
840.
Furthermore, Edwards undercuts its own holding by
acknowledging that balancing the secrecy necessary to guarantee
an impartial jury with the public’s right of access may not
always result in closure: “we do not foreclose the possibility
that the [F]irst [A]mendment . . . might require that
proceedings involving the questioning of jurors be held in open
court.” Edwards, 823 F.2d at 117 n.5.29 Edwards further
observes that “The issue of potential juror misconduct goes to
the very heart of public confidence in the fairness or
29
However, Edwards’ test for a First Amendment challenge—that in
order “to sustain a [F]irst [A]mendment challenge, factors must exist to
demonstrate that open proceedings would play a ‘significant positive role’ in
the functioning of the particular proceedings in question”—reverses the
burden expressed in Press-Enterprise II, because Edwards requires the
proponent of open proceedings to demonstrate a significant positive role that
open proceedings would play, rather than requiring the proponent of closure
to demonstrate a substantial probability of prejudice. See Press-Enterprise
II, 478 U.S. at 14 (holding that “the preliminary hearing shall be closed
only if specific findings are made demonstrating that . . . there is a
substantial probability that the defendant’s right to a fair trial will be
prejudiced . . . .”) (emphasis added).
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appearance of fairness in judicial proceedings. Once the
spectre of a tainted jury is raised, public scrutiny of the
resolution of the issue is essential[.]” Id. at 116 (emphasis
added).
Edwards, Halverson, and Ivester also present a more
fundamental constitutional problem. If the public’s right to
access and observe criminal trials can be analyzed and
determined out of public view, the public has no opportunity to
protect that right. See Phoenix Newspapers, 156 F.3d at 951
(holding that the constitutional safeguards provide the
essential, if not only, means by which the public’s voice can be
heard). It may well be that in all three cases there were
substantive reasons that secrecy was required for the proper
function of the court. Those reasons could have been
articulated as findings, satisfying constitutional
requirements.30 However, had the courts undertaken to make
findings, the public’s right of access would have been
considered, and a reviewing court would have been able to
determine whether the public right had been adequately
protected. These cases did not identify a persuasive logical
reason why midtrial examination of jurors to investigate
misconduct should allow closure of a courtroom without
30
For instance, in Ivester, “the court discussed the [jurors’
safety concerns] with counsel in open court with the jury absent.” Ivester,
316 F.3d at 957-58.
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consideration of the right of access of the public. On the
contrary, Edwards expressly identified a potential First
Amendment challenge to closure, thereby explicitly recognizing,
at a minimum, a qualified First Amendment interest in that
proceeding.
c.
Therefore, we hold that the qualified right of access
to criminal trials under article 1, section 4 of the Hawaiʻi
Constitution is not extinguished by the mere necessity to
conduct midtrial examination of jurors to investigate potential
juror misconduct. However, at the same time a defendant’s
article 1, section 14 right to a fair trial under the Hawaiʻi
Constitution is an overriding interest that may require that
such proceedings be held in closed court.31 Accordingly, when
the overriding interest asserted is the protection of
defendant’s right to a fair trial, the test proscribed by Press-
Enterprise II appropriately balances those competing
constitutional interests. Press-Enterprise II, 478 U.S. at 14.
31
We are not presented with, and therefore do not address, a
situation where a criminal defendant requests that court proceedings remain
open. See Waller, 467 U.S. at 47 n.6 (noting that “[o]ne of the reasons
often advanced for closing a trial—avoiding tainting of the jury by pretrial
publicity (e.g., [Press–Enterprise I], 464 U.S., at 510) is largely absent
when a defendant makes an informed decision to object to the closing of the
proceeding.”); Ortiz, 91 Hawaiʻi at 191, 981 P.2d at 1137 (adopting Waller).
Under Ortiz and Waller, a court essentially applies the standard set forth in
Press-Enterprise I. Waller, 467 U.S. at 48; Ortiz, 91 Hawaiʻi at 191, 981
P.2d at 1137.
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That is, the hearing should be “closed only if specific findings
are made demonstrating that, first, there is a substantial
probability that the defendant’s right to a fair trial will be
prejudiced by publicity that closure would prevent and, second,
reasonable alternatives to closure cannot adequately protect the
defendant’s fair trial rights.”32 Id.
d.
During the second and fifth proceedings on August 26,
2013, the circuit court closed the courtroom.33 The Partial
32
This test is similar to that prescribed by Gannett Pac. Corp.,
that in order to close a courtroom the presiding judge must find that there
is a “substantial likelihood that an open hearing . . . would interfere with
the defendant’s right to a fair trial by an impartial jury. Gannett Pac.
Corp., 59 Haw. 233, 580 P.2d at 56-57. See note 17, supra. To determine
whether a substantial probability exits, the factors from Gannett Pac. Corp.
may be helpful, as adapted to the particular situation.
In determining whether there is such a likelihood, the
district judge shall consider [1] the nature of the
evidence sought to be presented; [2] the probability of
such information reaching potential jurors; [3] the likely
prejudicial impact of this information upon prospective
veniremen; [4] and the availability and efficacy of
alternative means to neutralize the effect of such
disclosures.
Gannett Pac. Corp., 59 Haw. at 233-34, 580 P.2d 49, 57.
33
We do not address the first, third, and fourth proceedings that
were not open to the public because those proceedings took place in chambers
or at sidebar and involved questions of procedure rather than the actual
questioning of jurors.
The United States Supreme Court has stated that “when engaging in
interchanges at the bench, the trial judge is not required to allow public or
press intrusion upon the huddle.” Richmond Newspapers, 448 U.S. at 598 n.23.
The American Bar Association has expressed that trial judges should endeavor
to keep proceedings open to the public. “The trial judge should maintain a
preference for live public proceedings in the courtroom with all parties
physically present.” Standard 6.18(a), ABA Standards for Criminal Justice,
Special Functions of the Trial Judge, 3d Ed. (2000). “Although limited
matters may be conducted in chambers, public exposure to the criminal process
(continued. . .)
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Order to Unseal and the partially unsealed transcript make clear
that the circuit court was concerned with protecting the
Defendant’s Sixth Amendment right to a fair trial, however, the
circuit court’s intent only became apparent following the
issuance, six months later, of the Partial Order to Unseal. At
the time of closure, there was no indication to the Petitioners
why the circuit court felt compelled to close the courtroom. As
these two proceedings occurred in court, a qualified right of
the public to access the proceedings arose under both the First
Amendment and article 1, section 4 of the Hawaiʻi Constitution.
Accordingly, the court was obligated to make specific findings
articulating the overriding interest that required closure.
Press Enterprise I, 464 U.S. at 510. No contemporaneous
articulation was made by the circuit court; therefore, the
procedures of the circuit court were insufficient to protect the
public’s First Amendment and article 1, section 4 rights of
access to criminal proceedings.
As the Partial Order to Unseal specifies that the
compelling interest relied upon by the circuit court was the
Defendant’s Sixth Amendment right to a fair trial, the circuit
court should have applied the test from Press-Enterprise II to
33
(. . .continued)
both fosters the appearance of fairness and impartiality and facilitates the
deterrent impact of the criminal justice system.” Id., cmt.
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determine if closure was warranted.34 That is, the hearing
should be “closed only if specific findings are made
demonstrating that, first, there is a substantial probability
that the defendant’s right to a fair trial will be prejudiced by
publicity that closure would prevent and, second, reasonable
alternatives to closure cannot adequately protect the
defendant’s fair trial rights. Press-Enterprise II, 478 U.S. at
14.
The Partial Order to Unseal identified several
interests warranting closure of the courtroom, including the
privacy and security of the jurors and the importance of
preserving an impartial jury to ensure a fair trial on behalf of
both the Defendant and the State. While these reasons are
indisputable in the generic sense, they do not as stated provide
sufficient justification for a closure of a court proceeding.35
Press-Enterprise II, 478 U.S. at 15 (“The First Amendment right
of access cannot be overcome by the conclusory assertion that
publicity might deprive the defendant of that right.”); In re
Memphis Pub. Co., 887 F.2d 646, 648 (6th Cir. 1989) (holding
34
The test from Gannett Pac. Corp. may also have sufficiently
protected the Defendant’s right to a fair trial. See note 32, supra.
35
We also note that the belated issuance of the Partial Order to
Unseal is a less effective protection of the public right than would be
contemporaneous findings. See Waller, 467 U.S. at 49 n.8 (“The post hoc
assertion by the [court] that the trial court balanced the petitioners’ right
to a public hearing . . . cannot satisfy the deficiencies in the trial
court’s record.”).
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that “the naked assertion by the district court in this case
that defendant’s Sixth Amendment right to a fair trial ‘might
well be undermined,’ without any specific finding of fact to
support that conclusion, was insufficient to justify closure”).
The circuit court indicated in its Partial Order to
Unseal that it “must avoid exposing the individual jurors to
anything that may in any way improperly influence their
continuing decision-making processes.” The order suggests that
questioning a juror in front of friends and family might “expose
a juror to pressure and matters which are not part of the
evidence to be considered, [and] also could hamper the Court’s
search for candid answers from that juror.” Id. Therefore, the
order concludes that
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.
(Emphasis added).
We do not agree with the circuit court’s statement
that “public access would not play a significant positive role
in the functioning of this process.” As expressed by the
Supreme Court’s recognition of a First Amendment right of public
access, the parallel right of access under article 1, section 4
of the Hawaiʻi Constitution, and our firmly embedded general
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policy of open proceedings, public access always has a positive
role in the functioning of the courtroom process. Gannett Pac.
Corp., 59 Haw. at 228, 580 P.2d at 54. However, when midtrial
examination of jurors raises a risk to a defendant’s right to a
fair trial, the benefits of public access must be balanced
against the equally weighty concern for a defendant’s fair and
impartial jury in determining whether to close the proceedings
to the public.
While we do not decide whether the risk of prejudice
to the Defendant’s rights to a fair trial and an impartial jury
outweighed the public’s right of access in the present case, we
note that it may have been helpful for the circuit court to have
considered the factors delineated by Gannett Pac. Corp. in
determining whether there was a substantial likelihood that an
open hearing would interfere with the Defendant’s right to a
fair trial by an impartial jury. Gannett Pac. Corp., 59 Haw. at
233, 580 P.2d at 56; see note 16, supra. Specifically, the
circuit court may consider the nature of the likely testimony
provided by individual jurors, the probability of such
information reaching the remaining jurors, and the likely
prejudicial impact of this information. Importantly, the court
should always consider the availability or efficacy of
alternatives to closure that could neutralize the effect of the
reach of such prejudicial information. Rather than articulating
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generalized statements of policy, a court must make factual
findings specific to the circumstances that indicate the
substantial likelihood that an open hearing would interfere with
the defendant’s right to a fair trial by an impartial jury.
2.
The question of access to a post-trial transcript of a
closed hearing is distinct from the question of access to the
hearing. “The two are not synonymous, for the rationale for
closing a proceeding, such as infringement of the defendant’s
right to a fair trial, may have no bearing on a decision to seal
forever the content of in camera proceedings.” Phoenix
Newspapers, 156 F.3d at 946-47. “It would be an odd result
indeed were we to declare that our courtrooms must be open, but
that transcripts of the proceedings occurring there may be
closed, for what exists of the right of access if it extends
only to those who can squeeze through the door?” United States
v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994). “At the heart of
the Supreme Court’s right of access analysis is the conviction
that the public should have access to information; the Court
never has suggested that an open proceeding is only open to
those who are able to be bodily present in the courtroom
itself.” Id.
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a.
With respect to the right of access to judicial
documents under article I, section 4 of the Hawaiʻi Constitution,
the firmly embedded general policy of openness declared by
Gannett Pac. Corp. also applies to the transcript of closed
proceedings. “[A] complete record of those parts of the
proceedings closed to the public shall be kept and made
available to the public for a legitimate and proper purpose
following the completion of trial or disposition of the case
without trial.” Gannett Pac. Corp., 59 Haw. at 235, 580 P.2d at
57; see also Takao, 59 Haw. at 242, 580 P.2d at 63 (finding that
no irreparable harm was shown because the transcript was to be
made available to the public as soon as the trial was
concluded). “Historically, post-trial transcript access has
been granted as soon as the factors which prompted hearing
closure have been resolved.” Phoenix Newspapers, 156 F.3d at
947. Therefore, under the experience prong of the Supreme Court
test, precedent requires the release of the transcript once any
competing interests that militate for closure of a hearing
traditionally open to the public are no longer viable.
The same logical interests that animate the public’s
right of access to courtroom proceedings also underlie the
benefits that result from public access to a transcript of
closed proceedings once the danger that precipitated closure has
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passed. Unreasonable delay in the release of a transcript
“frustrates[s] the ‘community therapeutic value’ of openness.”
Press-Enterprise II, 478 U.S. at 13. Public access to a
transcript of a closed proceeding also “enhances both the basic
fairness of the criminal trial and the appearance of fairness so
essential to public confidence in the criminal justice system.”
Press-Enterprise I, 464 U.S. at 508. Further, once the trial is
completed, a defendant’s article 1, section 14 rights to a fair
and impartial jury and public trial under the Hawaiʻi
Constitution are typically no longer concerns, and consequently
there would be no logical reason to continue to deny the right
of access of the public for the purpose of protecting a
defendant’s right to a fair trial.
Thus, we hold that a qualified public right of access
to a transcript of a closed proceeding is present under both the
First Amendment and article 1, section 4 of the Hawaiʻi
Constitution, once the overriding interests that militated for
closure of the proceeding are no longer viable. “Indeed, the
denial of the motion to release the transcripts was in itself a
denial of the right of access protected by the first amendment.”
Brooklier, 685 F.2d at 1172. “It must be tested by the same
standard and must satisfy the same procedural prerequisites as
the initial closure.” Id. Therefore, the same procedural and
substantive protections that must be observed by a court
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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.
If public access to a transcript is to be denied, “a
trial judge should explain why the material is entitled to
privacy.” Brooklier, 685 F.2d at 1172. “[I]f a court
contemplates sealing a document or transcript, it must provide
sufficient notice to the public and press to afford them the
opportunity to object or offer alternatives.” Phoenix
Newspapers, 156 F.3d at 951. “If objections are made, a hearing
on the objections must be held as soon as possible.” Phoenix
Newspapers, 156 F.3d at 949. The hearing should provide a
“meaningful opportunity to address sealing the transcripts on
the merits, or to discuss with the court viable alternatives.”
Id.
Substantively, the trial court is required to make
specific findings demonstrating a compelling interest, a
substantial probability that the compelling interest would be
harmed, and there is no alternative to continued sealing of the
transcript that would adequately protect the compelling
interest. Id. at 949. The trial court may not rely on
“generalized concerns” but must indicate facts demonstrating “a
compelling interest justifying the continued sealing of the
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hearing transcript.” Id. at 950. Additionally, the court must
“specifically explain the necessary connection between unsealing
the transcript” and the infliction of irreparable damage
resulting to the compelling interest. Id. (holding that the
refusal to unseal the transcript was in error, as the court did
not explain the required connection between unsealing the
transcript and irreparable damage to the compelling interest).
Further, only access to those parts of transcript
“reasonably entitled to privacy” should be denied. Press-
Enterprise I, 464 U.S. at 513. Therefore, the “trial judge
should seal [] such parts of the transcript as necessary to
preserve the anonymity of the individuals sought to be
protected.” Id.
b.
In the present case, the circuit court did not
adequately protect the public’s right of access to the
transcript of the closed proceedings as guaranteed by article I,
section 4 of the Hawaiʻi Constitution. The transcript of the
August 26, 2013 proceedings was sealed and public access was
denied until February 24, 2014, some six months after the
mistrial was declared. Based on the brevity of the questioning
of the juror in the second and fifth proceedings and the fact
that the court allowed the juror to continue deliberating, the
circuit court was apparently convinced that the handshake at
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issue did not present a serious risk of a biased jury or raise
substantial issues of juror misconduct. Therefore, the
transcript of the closed proceedings should have been unsealed
as soon as practicable once the court allowed the jurors to
resume deliberations, with appropriate redaction of any
inappropriate statement about the subject matter of the
deliberations and personal identifiers of the involved jurors.
Further, at the close of the proceedings on August 26,
2013, the jury reported that they were deadlocked and the
circuit court declared a mistrial. Thus, any potential harm of
intrusion into jury deliberations as a result of the court’s
investigation had clearly passed when the mistrial was declared,
again militating for the immediate release of the transcript.
Juror privacy was never at risk by the release of the
transcript. As the unsealed transcript demonstrates, redacting
personal identifiers or replacing any identifying information
with a juror-number generally strikes the quintessential balance
between preserving juror privacy and allowing public access to
review trial proceedings for fairness and impartiality.
Therefore, under the circumstances of this case, the transcript
of the closed proceeding should not have remained sealed on the
basis of protecting juror privacy or security.
In denying public access to the transcript, the
circuit court did not apply the same procedural and substantive
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requirements as would be required to close a courtroom. The
circuit court was required to provide notice regarding its
intention to deny access to the transcript and to hold a hearing
allowing objections and alternatives to be presented if any
person wished to be heard. The circuit court was further
required to make specific findings on the record: (1)
identifying the compelling interest that would be harmed by
public access to the transcript, (2) demonstrating that a
substantial risk of harm to the compelling interest would occur
due to public access to the transcript, and (3) identifying any
alternatives to denial of public access that the court
considered but found insufficiently protective.
Accordingly, the public’s qualified right of access to
the transcript of the five proceedings on August 26, 2013, was
not adequately protected at the time the circuit court sealed
the transcript because the circuit court did not observe the
procedural and substantive steps necessary to ensure public
access was adequately considered in accordance with
constitutional requirements. Further, the circuit court
improperly continued to deny access to this transcript when the
potential risk of harm to any compelling interests that had
precipitated closure had passed.
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IV. Conclusion
The writ of prohibition is dismissed as moot because
the circuit court has already unsealed the transcript of the
closed proceedings of August 26, 2013, except for appropriate
redactions as to juror identification. The writ of mandamus is
denied as unnecessary in light of the directive of this opinion.
In summary, article 1, section 4 of the Hawaiʻi
Constitution provides the public a qualified right of access to
observe court proceedings of criminal trials. In keeping with
our firmly embedded policy of open trials, the circuit court,
and all Hawaiʻi courts conducting criminal proceedings involving
adult defendants, are directed to refrain from closing trial
proceedings that are presumptively open to the public.36 The
presumption of openness may be overcome only by an overriding
interest. The court must set forth specific findings
demonstrating the closure is essential to preserve the
overriding interest, and the closure is narrowly tailored to
serve that interest. Press-Enterprise I, 464 U.S. at 510.
Additionally, public access to a transcript of a
closed proceeding must be given the same protections as a
courtroom proceeding. Brooklier, 685 F.2d at 1172. A
36
As noted, see note 17, supra, “the reasons underlying openness in
the criminal context, as enunciated in [Gannett Pac. Corp.], are equally
compelling in the civil context.” Campbell, 106 Hawaiʻi at 462, 106 P.3d at
1105.
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transcript of those parts of the proceedings closed to the
public must be made available to the public once the danger to
the compelling interest has passed. Gannett Pac. Corp., 59 Haw.
at 235, 580 P.2d at 57; Takao, 59 Haw. at 242, 580 P.2d at 63;
Phoenix Newspapers, 156 F.3d at 947-48.
However, a defendant’s right to a fair and impartial
jury is a compelling interest that may outweigh the general
policy of openness and public access guaranteed by article 1,
section 4 of the Hawaiʻi Constitution. A defendant’s right to a
fair and impartial jury may be implicated if the court is
considering conducting midtrial questioning of jurors in order
to investigate potential misconduct. In such a situation, the
responsibility of the court is to make “specific findings . . .
demonstrating that, first, there is a substantial probability
that the defendant’s right to a fair trial will be prejudiced by
publicity that closure would prevent and, second, reasonable
alternatives to closure cannot adequately protect the
defendant’s fair trial rights. Press-Enterprise II, 478 U.S. at
14. In determining whether there is such a substantial
probability, the judge may consider: the nature of the likely
risk to the defendant’s right to an impartial jury; the
probability of such risk impacting the jurors impartiality; the
likely prejudicial impact of the risk; and, the availability and
efficacy of alternative means to neutralize the effect of the
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reach of such risk. Gannett Pac. Corp., 59 Haw. at 233-34, 580
P.2d at 57.
Jeffery S. Portnoy and /s/ Mark E. Recktenwald
John P. Duchemin
for petitioners /s/ Paula A. Nakayama
Robyn Chun and /s/ Richard W. Pollack
Charleen M. Aina
for respondent judge /s/ Robert M. Browning
Janice T. Futa, /s/ Edward H. Kubo
Brook Hart,
Margaret C. Nammar, and
Thomas M. Otake
for respondents
Robert Brian Black
for amici
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