Whether the shooting death of Kollin Elderts on Nov. 5 by a federal agent in town for APEC was justified isn’t the only question to be answered in upcoming Honolulu Circuit Court proceedings.

At stake too, and much sooner than any verdict, is transparency in the courthouse and whether people have a right to inspect records that are widely regarded as public.

In fact, a hearing scheduled for Thursday will grapple with this exact issue, and some of the players include local media outlets, including the Honolulu Star-Advertiser, its TV affiliate Hawaii News Now and the conservative, online publication Hawaii Reporter.

This is a convoluted topic, and one that involves more than just the rights of the accused. Part of it involves the circumstances behind the shooting death of Elderts, 23, at the hands of 28-year-old Christopher Deedy, a special agent with the U.S. State Department. But it also touches on the constitutional rights of public access to the courts and freedom of the press.

“It’s absolutely a First Amendment issue,” said Honolulu attorney Paul Alston, who has represented the Star-Advertiser and other media outlets in different cases. “It’s a First Amendment issue for the press and it’s a Sixth Amendment issue for Deedy who is entitled to a public resolution of his case.”

More specifically, Alston noted that the prosecution is trying to seal documents filed by the defense that claim the case against Deedy should be dismissed because he was acting as a law enforcement officer when he shot Elderts. Deputy Prosecuting Attorney Janice Futa wrote in her request to seal the records that her office believes making them public will taint a potential jury pool and prejudice the trial because of the high publicity surrounding the case.

Alston, as well as attorneys who are involved with the case, said this is an unusual move by the Honolulu prosecutor’s office. Alston also called it “inappropriate.”

“It’s a high profile case of intense public concern and if in fact there is a dispute about whether he is acting as a law enforcement officer or not it ought to come out and be aired publicly. It’s going to come out eventually at trial,” Alston said. “The other thing about it is you can be sure that if (the documents are) favorable to the government’s case that it wouldn’t be making this argument. That’s kind of troubling too.”

History Of The Case

A lot has happened since Deedy shot Elderts at a McDonald’s restaurant in Waikiki, including the filing of a lawsuit against the federal agent.

Here’s the situation as it stands today, from the alleged crime to the courtroom, using information gleaned from public documents, interviews and various media reports:

  • On Nov. 4, U.S. State Department special agent Christopher Deedy arrives in Honolulu as part of a diplomatic security detail for the Asia-Pacific Economic Cooperation conference, which was scheduled Nov. 7 to Nov. 13. His duty, according to his attorney, was to protect a Russian foreign minister.
  • That evening Deedy meets Adam Gutowski, his former college roommate from Tulane University, and Gutowski’s girlfriend, Jessica West, to “socialize for the evening.” Both Gutowski and West have been living on Oahu for several years.
  • In the early morning hours of Nov. 5 Deedy, Gutowsi and West go to the McDonald’s restaurant on Kuhio Avenue in Wakiki. It’s there they encounter Elderts, a Kailua resident, and his friend, Shane Mederios. A fight begins.
  • Deedy shoots and kills Elderts. No one disputes this. At issue are the circumstances of the altercation and whether Deedy acted in self defense or as a law enforcement officer. Police indicate Deedy had slurred speech and glossy eyes. Hospital records show he suffered some cuts and a broken nose indicative of an assault.
  • On Nov. 16, Deedy is indicted on charges of second-degree murder and carrying or using a firearm in the commission of a felony. He posts $250,000 bail and eventually is allowed to leave Hawaii to live at his home in Arlington, Va. He pleaded not guilty to the charges on Nov. 21.
  • One day after Deedy is indicted, Honolulu attorney Michael Green files a lawsuit against the federal agent on behalf of Eldert’s family. It claims Deedy was the first to physically strike in the McDonald’s incident, using a “martial arts maneuver” to kick Elderts in the chest and knock him to the ground.
  • Six months after the indictment, on May 14, Deedy’s attorney, Brook Hart, of Honolulu, files two motions to dismiss the case against his client. One argues the grand jury proceedings before the indictment were flawed. The other contends Deedy was acting in his professional capacity as a law enforcement officer, and that the case should be dismissed.

The Case Now

It’s at this point that the legal arguments sound more like something for a third-year law student.

The motion to dismiss the grand jury proceedings was included in the public court file, but the motion to dismiss the case on immunity grounds was not, despite the fact that the prosecution didn’t ask to seal the records until two days later. The prosecution says that’s because it wants to limit pre-trial publicity and ensure a fair trial.

Photos taken from the surveillance video at McDonald’s on Nov. 5 were attached to the defense motion that has been removed from the file. So has Hart’s interpretation of what the video shows.

But Futa, the prosecutor, argues in a written motion, that sealing the records “properly balances the right to a fair trial with the public value of informed commentary.”

But Deedy’s attorney as well as those representing the media say the prosecution’s arguments are misguided. And on Tuesday, Honolulu Circuit Court Judge Karen Ahn — herself a former journalist — allowed the media attorneys to add their voices to Hart’s in fighting the prosecution’s motion.

“It’s always an important issue when someone attempts to close a court proceeding,” said attorney Jeff Portnoy, who will argue the case Thursday on behalf of local media outlets. “It raises a question as to whether the constitutional right of the press and the public to attend and have access to the courts is in jeopardy on the basis of some claim of violation of a defendant’s rights.”

“It’s interesting it’s not the defense that’s claiming that (Deedy’s) rights are being impinged,” he said, “but it’s the prosecution, which is very rare and unusual.”

Pre-trial publicity that could taint potential jurors is frequently a concern for defense attorneys. But Hart says there has been a lot of misinformation in the media about his client, much of which he says was perpetuated by the attorney representing Elderts’ family.

The surveillance video could clear up any confusion or misconceptions about what happened, and that’s why Hart wants it made publicly available.

“From multiple angles, the surveillance video actually shows what happened at McDonald’s between Mr. Elderts and Special Agent Deedy on that date,” Hart wrote. “It shows Special Agent Deedy identifying himself as a law enforcement officer. Thereafter, it shows Kollin Elderts and Shane Mederios attacking Adam Gutowski and Special Agent Deedy.”

As such, he says, it is “compelling evidence.”

A spokesman for the prosecutor’s office said it filed a response to Hart and Portnoy. The filing was not yet available at the file room late Wednesday and prosecutors refused to comment on the case.

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