Doe et al v. State of Hawaii et al
Filing
46
ORDER DENYING DEFENDANT SCOTT O'NEAL'S MOTION FOR PROTECTIVE ORDER 16 . Signed by JUDGE DAVID ALAN EZRA on 10/14/2011. [Order follows hearing held 10/14/2011 on Motion, doc no. 16. Minutes of hearing: doc no. 44 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JANE DOE, Individually and as Next )
Friend of JOHN DOE, a minor;
)
RICHARD ROE 1, Individually and )
on behalf of JANE ROE 1, a minor; )
RICHARD ROE 2 and MRS.
)
RICHARD ROE 2, Individually and )
on behalf of JANE ROE 2, a minor; )
all Individually and on behalf of a
)
class of persons similarly situated,
)
)
Plaintiffs,
)
)
vs.
)
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STATE OF HAWAII, SCOTT
)
O’NEAL, SYDNEY DICKERSON, )
and John Does 1-10,
)
)
Defendants.
)
_____________________________ )
)
STATE OF HAWAII,
)
)
Third-Party Plaintiff,
)
)
vs.
)
)
PETER POES 1-100, PATRICIA
)
POES 1-100, AND PARENT POES )
1-100,
)
)
Third-Party Defendants. )
_____________________________ )
CIV. NO. 11-00550 DAE-KSC
SCOTT O’NEAL,
)
)
Third-Party Plaintiff,
)
)
vs.
)
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ROXSANNE TOMITA,
)
)
Third-Party Defendant. )
_____________________________ )
ORDER DENYING DEFENDANT SCOTT O’NEAL’S MOTION FOR
PROTECTIVE ORDER
On October 14, 2011, the Court heard Defendant Scott O’Neal’s
Motion for Protective Order (“Motion”). Glenn H. Uesugi Esq., appeared on
behalf of Plaintiffs; Randall K. Schmitt, Esq., appeared on behalf of Defendant
Scott O’Neal; Deputy Attorney General Dennis K. Ferm appeared on behalf of
Defendant State of Hawaii; and C. Bryan Fitzgerald, Esq., appeared on behalf of
Defendant Sydney Dickerson. After reviewing the Motion as well as the
supporting and opposing memoranda, the Court DENIES Defendant Scott
O’Neal’s (“O’Neal”) Motion for Protective Order. (Doc. # 16.)
2
BACKGROUND
The instant case action arises from allegations relating to sexual
assault which allegedly took place between and among students at the Hawaii
Center for the Deaf and the Blind (the “School”). (“Compl., Doc. # 1-1.)
Plaintiffs claim that a group of students, identified as “Ringleaders” in
the Complaint, had “[f]or many years . . . bullied, terrorized, assaulted, robbed
sodomized, raped, anally raped, gang raped, and/or sexual attacked students,”
including Plaintiffs. (Id. ¶ 26.) Plaintiffs claim that Defendants “knew or should
have known that the Ringleaders” engaged in this conduct. (Id. ¶ 28.) Plaintiffs
specifically allege that Defendant Sydney Dickerson (“Dickerson”), the School’s
administrator and O’Neal, the School’s counselor, “had actual knowledge and
certainly had reason to know of the wrongful activities of the Ringleaders.” (Id.
¶ 30.) According to Plaintiffs, the Ringleaders admitted to school counselors and
O’Neal in particular “that they had in fact harmed and assaulted other students.”
(Id. ¶ 32.) The Complaint goes on to detail specific instances of sexual assault
against Plaintiffs, and in particular against Plaintiff John Doe. (Id. ¶ 38–46.)
Plaintiffs also allege that O’Neal “engaged in inappropriate and
questionable activities with students at the school, including having them stay with
him overnight.” (Id. ¶ 47.) Plaintiffs complain that “[o]ut of malice and an
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improper purpose, Defendants at times concealed and conspired to conceal what
was going on, and negligently, recklessly, and intentionally failed to take effective
action to stop the wrongful activities.” (Id. ¶ 48.) Specifically, Plaintiffs aver that
Defendants failed to monitor bathrooms, notify appropriate authorities, and advise
parents of victimized students. (Id. ¶¶ 49–51.)
Based on these facts, Plaintiffs assert against Defendants’ causes of
action for: (1) negligence and punitive damages (id. ¶ 70); (2) intentional infliction
of emotional distress (id. ¶¶ 71–72); (3) violations of the Rehabilitation Act of
1973 (id. ¶¶ 73–74); (4) violations of the Americans with Disability Act (id.
¶¶ 75–76); (5) violations of Title IX of the Educational Amendments of 1972 (id.
¶¶ 77–80); (6) violations of the Individuals with Disabilities Act (id. ¶¶ 81–82); (7)
state and federal constitutional violations (id. ¶¶ 83–88).
On August 26, 2011, Plaintiffs filed their Complaint in the First
Circuit Court for the State of Hawaii. (See Doc. # 1-1.) On September 9, 2011,
Defendants removed to federal court. (See Doc. # 1.) On September 21, 2011,
O’Neal filed the instant Motion. (“Mot.,” Doc. # 16.) On October 11, 2011,
Plaintiffs filed an Opposition. (“Opp’n,” Doc. # 35.) The same day, Defendant
State of Hawaii filed a Response. (“Resp.,” Doc. # 36.)
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STANDARD OF REVIEW
Because “[t]he potential for injury to the integrity of the judicial
process is significant in cases involving trial publicity,” a court may restrict
publicity in certain circumstances. Levine v. U. S. Dist. Ct. for the Dist. of Cal.,
764 F.2d 590, 595, 597 (9th Cir. 1985). However, “[o]nly the occasional case
presents a danger of prejudice from pretrial publicity.” Gentile v. State Bar of
Nev., 501 U.S. 1030, 1064 (1991). To determine whether a case presents a danger
of prejudice from pretrial publicity, a court must balance the interests of ensuring
the integrity of the judicial process, including the right to a fair and impartial jury,
with the competing First Amendment rights of the attorneys publicizing the case.
See Levine, 764 F.2d at 595, 597; Gentile, 501 U.S. at 1075. To strike that
balance, courts may issue a protective order (otherwise known as a “gag order”)
when a “substantial likelihood of material prejudice” may result from the
extrajudicial statements. Gentile, 501 U.S. at 1075; see also Berndt v. Cal. Dep’t
of Corrections, 2004 WL 1774227, at *3 (N.D. Cal. August 9, 2004).
Additionally, the order must be “narrowly drawn” and no “less restrictive
alternatives” may be available, such as voir dire, change of venue or some other
device. Levine, 764 F.2d at 595; Gentile, 501 U.S. at 1075; Berndt, 2004 WL
1774227, at *3.
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DISCUSSION
I.
Motion for Protective Order
In his Motion, O’Neal seeks an order prohibiting “the parties and
attorneys in this matter from communicating with the media” with respect to the
following information:
1.
2.
3.
4.
5.
6.
The character, credibility, or reputation of a party;
The identity of a witness or expected testimony of a party or a
witness;
The contents of any pretrial confession, admission, or statement
given by a defendant or that person’s refusal or failure to make
a statement;
The identity or nature of physical evidence expected to be
presented or the absence of such physical evidence;
The strengths or weaknesses of the case of either party; and
Any other information the lawyer knows or reasonably should
know is likely to be inadmissible as evidence and would create
a substantial risk of prejudice if disclosed.
(Mot. at 13.)
O’Neal requests the protective order because “[t]he media coverage
surrounding this case has been rampant” and because Plaintiffs’ attorney, Michael
Green (“Green”) has “attempt[ed] to win [the] case through the media and not the
Court.” (Mot. at 3.) O’Neal points to the following statements Green has made to
the media in support of this assertion:
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•
“There’s no question that people in the highest places of
Department of Education knew about this. They knew about it
at the very latest in 2009 and probably before. . . . You’re
talking about some people who can’t see, so they can’t be
witnesses. We have people that can’t hear, so they can’t hear
outcries. And somebody has to be held accountable for it. I
have a concern that the police investigation was frustrated.”
(Mot., Ex. A.)
•
“The parents whose children were suspected of wrong doing
and parents of children apparently were preyed upon were
never told. . . . Because I am clear that some of the people at
[sic] the very top knew I have no doubt about that[.]” (Mot., Ex.
B.)
•
“It’s not thinkable. You can send your child that has these
special needs to a school and be worried about your child being
raped. It’s unthinkable. . . . Things that no child or no person
should ever experience, coupled with the fact that these children
have special needs. . . . The buck stops with the principal but
there are a lot of loose coins underneath that buck that need to
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be taken care of. . . . The teachers knew. I have no doubt that
they knew.” (Mot., Ex. C.)
•
“There could be an obstruction of justice issue which are
criminal, tampering with witnesses could be criminal, so there’s
a lot of stuff out there, and this is just the beginning of it. I think
people will come forward.” (Mot., Ex. D.)
•
“I can’t imagine raping someone in the bathroom and you get a
timeout for that. Go stand in the comer for 15 minutes and
don’t do it again.” (Mot., Ex. E.)
•
“In the complaint there is an allegation about an adult, and we
know that some of the students spent time at his home. And we
also have reason to believe that he was aware of sexual
misconduct among students at the school[.]” (Mot., Ex. F.)
•
“If there was a conspiracy to cover this up and obstruct justice
there is [sic] going to be some serious problems for people[.]”
(Mot., Ex. G.)
Finally, O’Neal points to the online comments to articles which quote
these statements as evidence that Green’s “media blitz is having the desired effect
on the public.” (Mot. at 5–7.)
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II.
Substantial Likelihood of Material Prejudice
As discussed, for O’Neal to be entitled to the relief he seeks, he must
demonstrate a “substantial likelihood of material prejudice” such that he will not
receive a fair trial. Gentile 501 U.S. at 1075. This Court must balance O’Neal’s
right to a fair and impartial jury trial, with Green’s competing First Amendment
rights. See Levine, 764 F.2d at 595, 597; Gentile, 501 U.S. at 1075.
O’Neal proffers two arguments for why there is a “substantial
likelihood of material prejudice.” Specifically, O’Neal contends that further
statements by Green: (1) would cause “further prejudice” to O’Neal’s livelihood
and (2) threaten his right to a fair trial. (Mot. at 10.)
O’Neal’s first argument is not persuasive. O’Neal contends that
Green’s comments will “further damage [his] reputation within the deaf
community” such that prejudicial statements by Green “will only serve to further
blacklist [O’Neal’s] name within [the deaf] community.” O’Neal argues that “a
protective order is necessary in this matter to prevent further prejudice to [O’Neal]
and protect his livelihood.” (Id.)
While the Court is sympathetic to these arguments, they are not
relevant for resolution of the instant Motion. The Supreme Court in Gentile was
clear, to obtain a protective order in this context a Court considers an individual’s
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right to a “fair trial by impartial jurors,” not potential damage to that individual’s
livelihood. See 501 U.S. at 1075 (“Few, if any interest under the Constitution are
more fundamental than the right to a fair trial by ‘impartial jurors,’ and an outcome
affected by extrajudicial statements would violate that fundamental right.”).
Indeed, the Court explicitly stated that limitations in this context “are aimed at two
principal evils: (1) comments that are likely to influence the actual outcome of the
trial, and (2) comments that are likely to prejudice the jury venire, even if an
untainted panel can ultimately be found.” Id. O’Neal’s arguments about the
damage to his livelihood cannot therefore be a part of this Court’s calculus at
present.1 Instead, as indicated above, this Court must balance O’Neal’s right to a
fair and impartial trial, with Green’s competing First Amendment rights. See
Levine, 764 F.2d at 595, 597; Gentile, 501 U.S. at 1075. O’Neal’s first argument
is therefore not persuasive.
1
To be certain, O’Neal may be entitled to relief in another context. For
instance, O’Neal might be entitled to a preliminary injunction or a temporary
restraining order in a defamation suit against Green, but that is not the issue here.
O’Neal specifically filed the instant Motion because he claims Green’s accusations
are “a blatant attempt by [Green] to win [the] case through the media and not the
Court.” (Mot. at 3.) The Court’s inquiry is therefore limited to whether and to
what extent Green’s statements have threatened O’Neal’s right to a fair trial. See
Levine, 764 F.2d at 595, 597; Gentile, 501 U.S. at 1075.
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As to O’Neal’s second argument, that Green’s extrajudicial statements
threaten O’Neal’s right to a fair trial, the Court cannot conclude that the statements
were so inflammatory that this Court should impose a restraint on Green’s freedom
of speech by Court order.
As a preliminary matter, the substance of the grand majority of
Green’s statements to the media are already a part of the public record. Green, for
instance, has stated that “people in the highest places of the Department of
Education knew about [the sexual assault.]” (Mot., Ex. A.) In the Complaint,
Plaintiffs allege specifically that Defendants “covered up and attempted to cover
up . . . what was happening at the school, including through threats.” (Compl.
¶ 21.) Similarly, Green told the media that “[t]he parents whose children were
suspected of wrong doing and parents of children apparently were prayed upon and
were never told.” (Mot., Ex. B.) In the Complaint, Plaintiffs allege that
“Defendants failed to advise parents of victimized students . . . concerning what
was happening.” (Compl. ¶ 51.) Indeed, Green, in the only statement where he
nearly mentions O’Neal by name, stated as follows:
In the complaint there is an allegation about an adult, and we know
that some of the students spent time at his home. And we also have
reason to believe that he was aware of sexual misconduct among
students at the school[.]
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(Mot, Ex. F.) In the Complaint, Plaintiffs allege that “O’Neal himself engaged in
inappropriate and questionable activities with students at the school, including
having them stay with him overnight.” (Compl. ¶ 47.) The Complaint also alleges
that O’Neal “had actual knowledge and certainly had reason to know of the
wrongful activities of the Ringleaders.” (Id. ¶ 30.) The Court cannot conclude that
Green’s statements, which, by and large, are contained in the Complaint and
already a part of the public record, are so inflammatory that the Court should
restrain Green’s speech.
Moreover, the qualitative nature of Green’s statements simply do not
rise to the high level necessary to justify issuing a protective order. The instant
case certainly does not compare favorably to the seminal United States Supreme
Court decision in Sheppard v. Maxwell, 384 U.S. 333 (1966). There, the Court
held a defendant did not obtain a fair trial where, in a nationally sensationalized
murder trial, the names of the jurors had been disclosed to the media and the trial
court denied the defendant’s request to examine the jury concerning what they had
heard in the media regarding the case. Id. at 353–57. Nor does it compare
favorably with Levine. There, the defendant was a former special agent with the
Federal Bureau of Investigation who was arrested and charged with espionage.
764 F.2d at 592. “The criminal proceedings against [the defendant] received
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extensive local and national media coverage.” Id. at 593. The court there twice
admonished defense counsel “to maintain an atmosphere in which a fair trial could
be conducted.” Id. Notwithstanding the warning, the defendant’s attorneys began
to discuss trial strategy and the implications of various court decisions with
reporters for the Los Angeles Times. Id. Thereafter the district court issued a
protective order prohibiting either party’s attorneys from speaking to the press. Id.
The Ninth Circuit concluded under those circumstances that “the record
support[ed] the district court’s conclusion that the activity restrained [posed] a
serious and imminent threat to the administration of justice.” Id. at 598. This was
particularly so because of the potential “circus-like environment that surrounds
highly publicized trials” and because the case had received widespread publicity.
Id.
While it is true that the instant case has received some publicity, it is
not comparable to the levels described either in Levine or Sheppard. There is
certainly no national media attention as yet on the instant case as in either case.
Nor has Green discussed trial strategy or the implications of this Court’s rulings
with the media as in Levine. Instead, as discussed, Green has done little more than
reiterate what is already a part of the public record as contained in the Complaint.
Under these circumstances, Green’s statements have not been so inflammatory that
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O’Neal’s right to a fair trial requires this Court to issue a protective order. In other
words, the Court cannot conclude that there exists or will exist a “substantial
likelihood of material prejudice” such that O’Neal will not receive a fair trial.
Gentile 501 U.S. at 1075.
Moreover, the Court has at its disposal a variety of tools to ensure that
the jury pool will not be tainted which are “less restrictive” than a protective order.
Levine, 764 F.2d at 595; Gentile, 501 U.S. at 1075. For instance, the Court will
incorporate into its voir dire a question about the extent to which each potential
juror has heard about the case and whether their knowledge of the case will color
their opinion at trial.
The Court does, however, caution Mr. Green to exercise restraint in
his dealings with the media. Moving forward Green must “maintain an atmosphere
in which a fair trial could be conducted.” Levine, 764 F.2d at 593. Indeed, this
Court wishes to remind all counsel of their obligations under Hawaii Rules of
Professional Conduct 3.6 which provides that
[a] lawyer who is participating . . . in the litigation of a matter shall
not make an extrajudicial statement that a reasonable person would
expect to be disseminated by means of public communication if the
lawyer knows or reasonably should know that it will have a
substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
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Haw. R. Prof’l Conduct 3.6. The Court expects all counsel to adhere to their
ethical obligations moving forward in these proceedings. The Court will not allow
this trial to devolve into a “circus-like environment” as in Levine or Sheppard.
CONCLUSION
For these reasons, the Court DENIES Defendant Scott O’Neal’s
(“O’Neal”) Motion for Protective Order. (Doc. # 16.)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 14, 2011.
_____________________________
David Alan Ezra
United States District Judge
Doe, et al. v. State of Hawaii, et al, Civ. No. 11-00550 DAE-KSC; ORDER
DENYING DEFENDANT SCOTT O’NEAL’S MOTION FOR PROTECTIVE
ORDER
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