Hawaii County Prosecutor Mitch Roth released police records Friday that he tried to keep secret because it mistakenly included the name of a 16-year-old girl who has accused Department of Land and Natural Resources Officer Ethan Ferguson of sexually assaulting her at a Hilo beach park while he was in uniform.
The document, known as a judicial determination of probable cause, essentially explains to the courts why Hawaii County police believed they had enough evidence to arrest and detain Ferguson for the crimes.
Such documents are considered public records under Hawaii law, and usually provide more details about the allegations facing a suspect. In Ferguson’s case, several media outlets, including Civil Beat, had been seeking the judicial determination of probable cause to get a better understanding of the crimes he is alleged to have committed.
Roth decided to release the records Friday morning, after talking with attorneys, including Civil Beat’s legal counsel, about the best way to proceed.
The case is particularly high profile considering that the state hired Ferguson even after learning he had been fired from the Honolulu Police Department in 2012. Ferguson’s termination was the result of falsifying reports and lying to investigators about transporting an underage runaway.
But on Jan. 14, Roth’s office filed a motion with Hawaii Circuit Court Judge Barbara Takase asking that the judicial determination of probable cause be sealed because Hawaii County police had put the victim’s full name in the charging document instead of using her initials or otherwise disguising her identity, which is normal protocol.
Takase approved the prosecutor’s motion the same day without holding a hearing or providing the public with a chance to object. Her decision was met with incredulity from the press and public records experts alike.
Media outlets typically do not publish the names of sex assault victims. And even if that was a concern, Hawaii County officials could have redacted the victim’s name and released the documents without having to seek a blanket order from the court.
Jeff Portnoy, a Honolulu-based First Amendment attorney, told one media outlet that Takase’s decision to seal the records was “like taking a meat cleaver to cut a hot dog.” And on Friday, he filed a petition with the Hawaii Supreme Court on behalf of the Honolulu Star-Advertiser to overrule Takase, saying that her decision to seal the records was a violation of state and federal law.
But ultimately that legal maneuver was unnecessary. Civil Beat Law Center for the Public Interest Executive Director Brian Black, who represented Civil Beat in the case, had been working with Roth to release the documents with the victim’s name removed without a court battle.
Roth made the decision to file a new judicial determination of probable cause with the courts before Portnoy filed his motion.
“Our purpose the whole time was to protect the victim and I stand by everything we did and I stand by what the judge did,” Roth said Friday. “Unfortunately, there was a little hiccup on the first part (with the police department). We’re working to make sure that doesn’t happen again.”
Black said his review of the circumstances didn’t indicate that the prosecutors were trying to hide anything from the public, and that it just appeared as if they were trying to correct a mistake.
“I understand where the Star Advertiser is coming from and what their concerns are,” Black said. “But in the end the prosecutor’s office was trying to fix this and in the end has essentially fixed the problem. It’s always better not to bother the judiciary when you don’t have to.”
The judicial determination of probable causes provides more detail about what happened on Jan. 1 when Ferguson is alleged to have committed the sexual assault.
According to police reports, Ferguson had caught the teen smoking marijuana at Lalakea Beach Park and told her that he wouldn’t take her to the police station if she paid him off with drugs, money or sex.
The girl told Ferguson, who was on duty at the time, that she didn’t have money or drugs, and that she didn’t want to have sex with him. She told police that Ferguson made her undress and then sexually assaulted her.
Ferguson is now charged with five counts of sexual assault. He has posted $13,000 bail and is awaiting his first court appearance in Hilo on Feb. 2 at which point he is expected to enter a plea.
DLNR has stripped Ferguson of his police powers and placed him on administrative leave with pay. The DLNR Division of Conservation and Resources Enforcement will also conduct its own investigation into the matter.
There are still questions, however, about why Ferguson was hired in the first place. Officials from HPD have said they told the state that Ferguson had been fired from the department. And even though HPD officials warned DLNR not to hire Ferguson, it appears no one from the state followed up to find out why that recommendation was made.
Few details have been made public about Ferguson’s termination from HPD. Civil Beat first reported in February 2014 that Ferguson was fired after he falsified records and lied to investigators about transporting a female runaway who was underage.
The description of his offense came from an annual misconduct report filed with the Legislature. But when Civil Beat asked for Ferguson’s full disciplinary file — which is releasable under the state’s public records law — the department said that it had already been destroyed.
At the time, HPD’s records retention policy called for the department to purge officers’ disciplinary files 30 months after the launch of an internal investigation. In Ferguson’s case, his firing wasn’t made public through the annual misconduct reports until after that period had passed.
The Legislature responded to the case in 2014 by passing a reform bill that called on county police departments to provide more information about officer misconduct in its annual reports.
That bill also included a provision directly tied to the fact that Ferguson’s disciplinary file had been destroyed that required departments to hold onto those records for at least 18 months after a final decision on punishment had been made and included in an annual report.
You can read the judicial determination of probable cause here: