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ROBERT BRIAN BLACK
7659
Civil Beat Law Center for the Public Interest
700 Bishop Street, Suite 1701
Honolulu, Hawai`i 96813
brian@civilbeatlawcenter.org
Telephone: (808) 531-4000
Facsimile: (808) 380-3580
Attorney for Civil Beat Law Center
for the Public Interest
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
UNITED STATES OF AMERICA,

MISC. NO. 18-477
[CR NO. 17-00582 JMS-RLP-1]

Plaintiff,
MEMORANDUM IN SUPPORT OF
MOTION TO UNSEAL COURT
RECORDS

vs.
KATHERINE P. KEALOHA et al.,
Defendants.

MEMORANDUM IN SUPPORT OF
MOTION TO UNSEAL COURT RECORDS
According to the indictment, a deputy prosecuting attorney and the
chief of police—among other things—defrauded a man, framed him for a
crime, and conspired with other police officers to cover-up their
wrongdoing. If true, these allegations against Defendant Katherine P.
Kealoha and others strike at the integrity of the criminal justice system in
Hawai`i. With such charges of public corruption, it is especially important

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that this Court ensure the public remains informed concerning the progress
of the case. “People in an open society do not demand infallibility from
their institutions, but it is difficult for them to accept what they are
prohibited from observing.” Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 572 (1980) (plurality opinion); Press-Enter. Co. v. Superior Ct., 464 U.S.
501, 508 (1984) (“Openness thus enhances both the basic fairness of the
criminal trial and the appearance of fairness so essential to public
confidence in the system.”).
A series of recent filings in this case, however, have been sealed
without apparent explanation. Pursuant to the public’s First Amendment
and common law rights of access, the Civil Beat Law Center for the Public
Interest (Law Center) respectfully moves to unseal:
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Dkt. 268:
Dkt. 269:
Dkt. 270:
Dkt. 271:
Dkt. 272:
Dkt. 281:
Dkt. 282:
Dkt. 283:
Dkt. 284:
Dkt. 285:
Dkt. 286:
Dkt. 287:

9/10/18 Ex Parte Application by Def. K. Kealoha
9/12/18 Order re Dkt. 268
9/12/18 Motion by Def. K. Kealoha
9/17/18 Order re Dkt. 270
9/28/18 EO re Def. K. Kealoha
11/19/18 Motion by United States
11/19/18 EO re Def. K. Kealoha re Dkt. 281
11/26/18 Opposition by Def. K. Kealoha re Dkt. 281
[Missing from Docket, but referenced in Dkt. 285]
11/30/18 Order re Dkt. 281, 284
12/4/18 EO re Def. K. Kealoha
12/5/18 EO re Def. K. Kealoha
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If there is a compelling reason for sealing these records in the entirety, it
must be stated in findings on the record. E.g., Press-Enter., 464 U.S. at 510;
United States v. Bus. of the Custer Battlefield Museum & Store, 658 F.3d 1188,
1195 (9th Cir. 2011) [Custer Battlefield].
I.

THE PUBLIC HAS A PRESUMED CONSTITUTIONAL RIGHT
OF ACCESS TO RECORDS OF CRIMINAL PROCEEDINGS.
The constitutional right of public access to criminal proceedings is

among those rights that, “while not unambiguously enumerated in the
very terms of the [First] Amendment, are nonetheless necessary to the
enjoyment of other First Amendment rights.” Globe Newspaper Co. v.
Superior Ct., 457 U.S. 596, 604 (1982). “A major purpose of that Amendment
was to protect the free discussion of governmental affairs.” Id.; Richmond
Newspapers, 448 U.S. at 575 (plurality opinion) (the freedoms in the First
Amendment “share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government”).
Thus, to the extent that the constitution guarantees a qualified right of
public access, “it is to ensure that this constitutionally protected ‘discussion
of governmental affairs’ is an informed one.” Globe Newspaper, 457 U.S. at
605; Richmond Newspapers, 448 U.S. at 587 (Brennan, J., concurring)
(“Implicit in this structural role is not only the principle that debate on
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public issues should be uninhibited, robust, and wide-open, but also the
antecedent assumption that valuable public debate—as well as other civic
behavior—must be informed.”).
“By offering such protection, the First Amendment serves to ensure
that the individual citizen can effectively participate in and contribute to
our republican system of self-government.” Globe Newspaper, 457 U.S. at
604. “[T]he public has an intense need and a deserved right to know about
the administration of justice in general; about the prosecution of local
crimes in particular; about the conduct of the judge, the prosecutor, defense
counsel, police officers, other public servants, and all the actors in the
judicial arena; and about the trial itself.” Richmond Newspapers, 448 U.S. at
604 (Blackmun, J., concurring). “[Openness] gave assurance that the
proceedings were conducted fairly to all concerned, and it discouraged
perjury, the misconduct of participants, and decisions based on secret bias
or partiality.” Id. at 569; accord Press-Enter., 464 U.S. at 508 (“[T]he sure
knowledge that anyone is free to attend gives assurance that established
procedures are being followed and that deviations will become known.”).
“A result considered untoward may undermine public confidence,
and where the trial has been concealed from public view an unexpected
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outcome can cause a reaction that the system at best has failed and at worst
has been corrupted.” Richmond Newspapers, 448 U.S. at 571 (plurality);
Globe Newspaper, 457 U.S. at 606 (“[P]ublic access to the criminal trial fosters
an appearance of fairness, thereby heightening public respect for the
judicial process.”).
The same First Amendment standards for closing courtroom
proceedings apply to sealing documents for criminal pretrial proceedings.
E.g., Associated Press v. U.S. Dist. Ct., 705 F.2d 1143, 1145 (9th Cir. 1983). As
the Ninth Circuit has observed:
There is no reason to distinguish between pretrial proceedings
and the documents filed in regard to them. Indeed, the two
principal justifications for the first amendment right of access to
criminal proceedings apply, in general, to pretrial documents.
Those two justifications are: “first, the criminal trial historically
has been open to the press and general public,” and “second,
the right of access to criminal trials plays a particularly
significant role in the functioning of the judicial process and the
government as a whole.” There can be little dispute that the
press and public have historically had a common law right of
access to most pretrial documents — though not to some, such
as transcripts of grand jury proceedings. . . . We thus find that
the public and press have a first amendment right of access to
pretrial documents in general.
Id. (citations omitted).
To preserve the societal values reflected in the First Amendment, the
U.S. Supreme Court held that “[c]losed proceedings, although not
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absolutely precluded, must be rare and only for cause shown that
outweighs the value of openness.” Press-Enter., 464 U.S. at 509. “The
presumption of openness may 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.” Id. at 510; accord Globe Newspaper,
457 U.S. at 606-07.
II.

THE PUBLIC ALSO HAS A PRESUMED COMMON LAW RIGHT
OF ACCESS TO RECORDS OF CRIMINAL PROCEEDINGS.
The Ninth Circuit has recognized only a narrow range of judicially

filed documents that are not subject to the common law right of access
“because the records have traditionally been kept secret for important
policy reasons.” Custer Battlefield, 658 F.3d at 1192. Those categorically
exempt records include grand jury transcripts and warrant materials
during pre-indictment investigation. Id. For all other judicial records, “a
strong presumption in favor of access is the starting point.” Id. at 1194.
For the common law analysis, the “party seeking to seal a judicial
record then bears the burden of overcoming this strong presumption by . . .
articulating compelling reasons . . . that outweigh the general history of
access and the public policies favoring disclosure.” Id. at 1194-95. A court
presented with a motion to seal “must base its decision on a compelling
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reason and articulate the factual basis for its ruling, without relying on
hypothesis or conjecture.” Id. at 1195. “[T]he court may not restrict access
to the documents without articulating both a compelling reason and a
factual basis for its ruling.” Id. at 1196.
III.

NO MOTION NOR FINDINGS HAVE BEEN MADE TO JUSTIFY
SEALING THESE JUDICIAL RECORDS.
The only motion to seal filed in this case concerned the filing of a

transcript from a sealed case as an exhibit to the Government’s motion to
disqualify the Kealohas’ prior counsel. Dkt. 75. There have been no other
motions or orders on the public record that justify sealing other documents
in this case. But in the last three months, Defendant Katherine Kealoha, the
Government, and the Court have filed 12 motions, applications, orders, or
other judicial documents under seal without any public findings of fact to
explain the compelling reason for closure. “America has a long history of
distrust for secret proceedings.” United States v. Index Newspapers LLC, 766
F.3d 1072, 1084 (9th Cir. 2014).
“[E]ntry 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.” Phoenix Newspapers, Inc. v. U.S. Dist. Ct., 156 F.3d 940, 951
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(9th Cir. 1998). Here, there are no findings. And the generic titles in the
docket entries (e.g., “Sealed Motion”, “Sealed Ex Parte Application”,
“Opposition”, or “Sealed Order”) further confounds public access and
confidence because it is impossible to determine the basic nature of the
proceedings—the first step in analyzing the extent to which public access is
required.
In the absence of a proper motion to seal and specific findings of fact
by the Court, the documents identified in the Law Center’s motion should
be unsealed.
CONCLUSION
Based on the foregoing, the Law Center respectfully requests that the
Court grant its motion to unseal the court records.
DATED: Honolulu, Hawai`i, December 14, 2018
/s/ Robert Brian Black
ROBERT BRIAN BLACK
Attorney for Civil Beat Law Center
for the Public Interest

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