Oahu Publications Inc. v. Ahn (HSC July 16, 2014)
Background. Last summer, Christopher Deedy was on trial for the death of Kollin Elderts. After weeks of testimony, the case went to the jury for deliberation. The jury deliberated for several days before it became hopelessly deadlocked and the circuit court, Judge Karen Ahn, declared a mistrial. This case was covered by Oahu Publications, better known as the Honolulu Star-Advertiser, and KHNL/KGMB. On the fifth day of jury deliberations, Judge Ahn held five hearings that were not open to the public at the end of which, Judge Ahn sealed portions of transcripts pertaining to these sessions. At the last proceeding, Judge Ahn ordered the courtroom cleared a few times. The media did not object to the closing of the courtroom. When they resumed in the open, Judge Ahn declared a mistrial.
A few weeks later, the Star-Advertiser and KHNL/KGMB (the media) filed in the HSC petitions for a writ of prohibition and a writ of mandamus on the grounds that the closing of the courtroom and sealing of portions of transcripts violated the First Amendment. The media asked the HSC to issue a writ that prohibited Judge Ahn from further sealing the transcripts and unsealing what she has previously sealed. The media also asked for a writ that would prevent Judge Ahn from closing the courtroom and sealing documents during the re-trial (which is happening right now) without first providing notice, an opportunity to be heard, and the issuance of findings of fact for preventing public access to the courtroom.
The HSC eventually remanded the case with instructions to litigate the issue further by having the media file motions and allowing the State to respond. Judge Ahn granted the motion in part and explained her actions. She also unsealed parts of the transcript. The transcripts revealed that the closed sessions addressed a potential issue pertaining to juror misconduct. The issue started when a juror asked Judge Ahn’s clerk what they should do if “we feel one of the jurors is a friend of one of the sides?”
This lead to bringing in the foreperson for questioning. The foreperson reported that he noticed a juror eating lunch with “the family” and it looked to the foreperson like the juror was friends of the family based on interactions in the hallway outside the courtroom. The juror was brought in for questioning by Judge Ahn. The juror told the court that he or she “can be fair to both sides” in this case. Deedy objected to the questioning as insufficient, but was overruled.
Later sessions revealed that the jury was going to be deadlocked. Deedy revisited the sufficiency of the questioning by Judge Ahn and argued that if a retrial were to happen, this could bring about Double Jeopardy concerns. The State agreed and requested further questioning of the juror. At the final closed session, Judge Ahn questioned the juror further. The juror said that he shook hands with “one guy I used to work with . . . I think like almost seven years ago.” The juror said it did not influence him in this case. The juror, however, did say that he had some contact with someone associated with the case. The juror said that there was another time in which he saw a person that could be associated with the case. Deedy requested more questions to determine if there was in fact juror misconduct. The State objected. The remainder of the proceedings were sealed.
The proceedings returned to the HSC.
The First Amendment and the Qualified Right to Attend Jury Trials. “Congress shall make no law . . . abridging the freedom of speech, or of the press[.]” U.S. Const. Am. I. “The right to attend criminal trials is implicit in the guarantees of the first amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This right is not unlimited. It is based on the considerations of “logic and experience.” Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty, 478 U.S. 1, 8 (1986). “Experience” prong, the court must determine if “the place and process have historically been open to the press and general public” Id. The “logic” prong hinges on whether “public access plays a significant positive role in the functioning of the particular process in question.” Id. If both are satisfied, a qualified First Amendment right of access attaches to the proceeding. The SCOTUS held that the First Amendment applies to the evidence and testimonial phase of the trial, Richmond Newspapers, Inc., 488 U.S. at 580, as well as the testimony of minors, Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 586, 606 (1982), and during voir dire. Press-Enter. Co., 464 U.S. 501, 505 (1984).
The Hawaii Constitution’s Right to Free Speech and Press. “No law shall be enacted . . . abridging the freedom of speech or of the press[.]” Haw. Const. Art. I, Sec. 4. In interpreting this provision, the HSC “considers the case law established under the first amendment of the United States Constitution.” In re: HGEA, 116 Hawaii 73, 84, 170 P.3d 324, 335 (2007). Even though the language between the state and federal constitutions are pretty much identical, the HSC “may find that the Hawaii Constitution affords greater free speech protection than its federal counterpart.” Crosby v. State Dept. of Budget & Fin., 76 Hawaii 332, 340 n. 9, 867 P.2d 1300 (1994). According to the HSC, throughout Hawaiian history, the public has enjoyed a “long tradition” of access to the courts. This tradition goes back to the 1820s as the kapu system gave way to more Westernized courts of law. “Courts 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). Put differently, “[t]he words ‘public trial’ are self-explanatory.” Id.
“Procedural and Substantive Requirements.” So if the right attaches, the court has to undergo certain “procedural and substantive requirements.” 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.” United States v. Brooklier, 685 F.2d 1168, 1167-68 (9th Cir. 1982). In order to justify closing the courtroom, the court must find (1) closure serves a compelling interest; (2) there is a substantial probability that, absent the closure, the compelling interest would be harmed; and (3) there are no alternatives to closing the courtroom that would protect the interest. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Ore., 920 F.2d 1462, 1466 (9th Cir. 1990).
So When Does the Court have to do this? The HSC examined when the trial court must make these provide opportunity to object and make findings. Here, the stage of the trial was no longer during the testimony of witnesses or the evidentiary phase of the case, but what it called the “midtrial examination of jurors.” The HSC also examined the sealing of transcripts of the closed proceedings as a close analogy.
Examining Jurors for Potential Juror Misconduct is a Critical Stage of the Trial Creating a Limited First Amendment Right for the Press. First off, the HSC noted that public access of the examination of jurors to determine the possibility of misconduct may infringe upon the defendant’s right to an impartial jury. U.S. Const. Am. VI; Haw. Const. Art. I, Sec. 14. This right means that the defendant enjoys the right to impartial jury deliberation, which “shall remain private and secret[.]” United States v. Olano, 507 U.S. 725, 737 (1993); State v. Kim, 103 Hawaii 285, 292, 81 P.3d 1200, 1207 (2003) (“public policy demands that the sanctity of jury deliberations be vigorously guarded to ensure frankness and open discussion.”).
Whenever there is the possibility of juror misconduct, the trial court has a duty to investigate. State v. Yamada, 108 Hawaii 474, 479, 122 P.3d 254, 259 (2005). Herein lies the conflict. The investigation of juror misconduct must be made on the record, but that would include proceedings to which the public normally has access. From here, the HSC applied the “logic and experience” test to midcourt proceedings.
As for the experience portion, the HSC concluded that there is no clear tradition of “either open or closed proceedings when a court conducts a midtrial examination of jurors regarding misconduct.” And so it was a push. The HSC held that under the experience prong, there is “little guidance in this case and it is appropriate to give greater weight to the ‘logic prong[.]’” From there, the HSC held that logic supported an open courtroom. In the end, the HSC held that the qualified right of access to the courtroom at trial is “not extinguished by the mere necessity to conduct midtrial examination of jurors to investigate juror misconduct.”
The Trial Court did not Follow the Necessary Procedures. Having held that there was a constitutional dimension to these proceedings, the HSC looked to the closing of the courtroom. It noted that the trial court made no findings justifying the closure of the courtroom. The generalized statements later made by the trial court about the pressure of having the media there was simply insufficient. The 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.”
The Same Goes for Transcripts. The HSC moved on to examine whether the transcripts should have been sealed. It applied the logic and experience test and held that the trial court must make findings justifying the sealing of transcripts—even after the trial is over. Here, the transcripts were sealed for nearly six months after the mistrial had been declared. The HSC held it should have been unsealed for the public sooner.