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Friday, December 31, 2004
[ OUR OPINION ]
Judge must open
THE ISSUEA Big Island judge has begun closing his courtroom door during some criminal proceedings.
Pyun began his closed-door policy on Dec. 20 and the next day was challenged by Deputy Public Defender Jennifer Wharton, whose office represents a man charged with contempt of court in a domestic violence case. "For security reasons," he told Parker during her client's bail hearing, "we do not allow the public to be in the same courtroom while we have people in custody."
Two days later, Pyun issued a memorandum ordering deputy sheriffs to "place themselves in the front of the courtroom facing the spectators in a position to prevent any attack on attorneys or staff." The requirement apparently pertains to court sessions in which defendants are not in custody.
The judge has not specified any Baghdad-level security concerns that would warrant such precautions. People entering the courthouse are required to pass through a metal detector.
The U.S. Supreme Court has ruled that a closed trial or pretrial proceeding can be ordered over the objection of the accused only if the state can show "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."
The reasons must be of such importance that they override a defendant's Sixth Amendment right to a fair trial and the public's and media's First Amendment right to be present at court proceedings. Such findings are commonly applied to Family Court proceedings involving juveniles.
THE ISSUEA federal appeals court has upheld a judge's order freezing assets of the Marcos estate in bank accounts.
In a class-action lawsuit filed in 1986, the year Marcos fled to Hawaii, a federal jury in Honolulu awarded nearly $2 billion in 1994 to 9,539 Filipinos, finding Marcos responsible for summary executions, disappearances and torture. Collecting the money proved to be more difficult, and the Marcos estate agreed in 1996 to the $150 million settlement.
Marcos had hidden more than $350 million in Swiss banks. The Switzerland Supreme Court ruled in 1997 that the assets were ill-gotten and approved their transfer to an escrow account in the Philippine National Bank. For the same reason, a Philippine court rejected a request in 1999 to transfer $150 million from the Philippine bank to the settlement fund.
U.S. District Judge Manuel Real then terminated the settlement agreement. Real ordered several Swiss banks to transfer all assets of the estate to a court registry, but the appeals court blocked the order, ruling that the judge had no such authority.
The Philippine Supreme Court ruled last year that the Philippine bank could transfer the assets to the Philippine government, out of the Marcos victims' reach. Real quickly ruled that no bank could transfer Marcos assets, and he reinstated the $150 million settlement.
The Philippine government challenged both the reinstatement of the settlement and the order freezing the Marcos assets. The 9th Circuit this week rejected its argument, ruling narrowly that the government was neither a party to the settlement nor a bank subject to the freeze. A more important ruling will be the appeals court's decision on the appeal by the Philippine bank.
|Dennis Francis, Publisher||Lucy Young-Oda, Assistant Editor
|Frank Bridgewater, Editor
|Michael Rovner, Assistant Editor
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