BY JIM DOOLEY – After expressing misgivings about the power of video to influence public opinion in the age of the Internet, Circuit Judge Karen Ahn said today will rule next week on whether surveillance video of a November 2011 fatal shooting in Waikiki should be immediately opened to public viewing.
Defense attorney Brook Hart filed a copy of the videotape in court last week as part of his argument that his client, U.S. State Department security officer Christopher Deedy, was acting in his official capacity when he shot Kollin Elderts to death in an early morning altercation inside McDonald’s restaurant on Kuhio Avenue.
The video and hundreds of “screen shot” photographs were sealed after prosecutors said the material would create prejudicial publicity in advance of Deedy’s trial on charges of second-degree murder and a firearms offense.
In a hearing before Ahn today, Hart argued that the video supports his motion to dismiss the charges.
“What better evidence would there be that Mr. Deedy was acting within his duties as a federal officer than a movie of it actually happening?” Hart said in the hearing.
Hart acknowledged that “the state has a right to have a process that results in a fair trial.”
But Deedy has “a much more fundamental right” which is to make a motion to dismiss the criminal case “because he was a federal officer on the night that this incident occurred and he was authorized to respond to what he saw as an incident that could disrupt and injure and become violent very quickly,” said Hart.
Elderts, 23, and a companion, Shane Medeiros, were “bullying” a customer in McDonalds, said Hart.
An argument then developed between Elderts, 23, and Deedy, 28, which escalated into physical violence and finally fatal gunfire.
Hart said the video shows Deedy displaying “his identification and badge … Mr. Deedy being attacked by Mr. Elderts, knocked to the floor, beaten in the nose, all before any gun comes out.”
Private attorney Jeff Portnoy, who respresented three media organizations including Hawaii Reporter, Hawaii News Now and the Star Advertiser, argued to Ahn that the prosecutors have not produced legally-required “compelling evidence” that supports their request to seal the records.
And Portnoy said the 6th Amendment of the U.S. Constitution guarantees the rights of a criminal defendant to a fair trial, but says nothing about prosecutors.
“I have been representing the media in this state for nearly 40 years. This is the first time that the prosecution has sought to seal a proceeding or a pleading. It has always been the defense,” said Portnoy.
In response to Hart and Portnoy, Deputy Prosecutor Jan Futa said, “I barely know where to begin.”
On Portnoy’s 6th Amendment argument. Futa said, “There may not be any constitutional provision that the state receives a fair trial, but you know what? I hear it all the time in every jury trial, the court tells the jurors that both the state and the defense are entitled to a fair trial.”
She said the videotape, as presented by Hart in the still-secret motion is accompanied by the defense lawyer’s “commentary and hearsay testimony.”
“That’s what the public is going to see and that’s not fair,” said Futa.
Ahn, who was a local television reporter before becoming a lawyer, a prosecutor and a judge, raised particular concerns about the effect video could have on potential jurors.
“I’m from TV news,” she said. “I think the visual is something apart from something that is in writing,” she said.
Ahn told Hart that she has viewed the surveillance tape “a couple of times” but said she said would make no comment on its contents.
She said she planned to issued a ruling by Tuesday but also asked the defense and prosecution to present her within two weeks details of all laws, rules, and policies relating to Deedy’s legal authorities and duties when Elderts was shot.
She said she also wanted materials “regarding his specific assignment in Hawaii.”
Deedy lives in Virginia and was here in November 2011 to assist with security the U.S.-hosted Asia Pacific Economic Cooperation conference.
He is free on $200,000 bail.
A full hearing on Hart’s motion to dismiss the case is not scheduled to heard by Ahn until July.
If the case proceeds, Hart is expected to seek to delay the start of the trial to March 2013.