Wednesday, July 1, 2009

Musings: Playing Rough

What a gorgeous day!

Jupiter and Venus were golden and Waialale — as first glimpsed through the looped barbed wire atop the lumber yard fence — was totally clear, as were Kalalea, Hokualele, Nounou, Haupu, Makaleha and all the other mountains, when Koko and I set out walking this morning.

Clouds started slowly drifting in as we cruised down Kawaihau Road, with me admiring the super cute architecture of some of the houses, and Koko endlessly fascinated with an array of scents, and by the time the eastern sky turned yellow, they were piling up mauka and shapeshifting into coral heads makai.

And then came the rosy light of dawn, casting everything in that soft, warm, glow that softens all the rough edges.

The attorneys for Joe Brescia are playing a little rough, subpoenaing the unpublished interviews and raw video footage of independent filmmaker Keoni Kealoha Alvarez, who is making a documentary on Hawaiian burial practices for PBS.

Brescia’s attorneys apparently believe the material will be useful in the civil suit they’ve filed against those who have opposed the house Brescia is building atop burials at Naue, and even some who have not.

Fortunately, the ACLU and Honolulu attorney James Bickerton have agreed to represent Keoni, who received a 2005 commendation from Gov. Lingle for his accomplishments in preserving the Hawaiian culture, using Hawaii’s new “media shield law.”

According to a press release from the ACLU:

In preparing this documentary, Alvarez was unwittingly drawn into a legal battle over the construction of Joseph A. Brescia's home on Naue Point on Kauai.

Bickerton said: "Alvarez's unpublished documentary footage is clearly protected by law against disclosure under Hawaii's 'media shield.' The law restricts attorneys from using the subpoena power of the court to compel protected information from journalists. Just as we expect and protect doctor-patient confidentiality because it fosters trust and healthy outcomes, journalists have, under the law, the same right to protect the confidentiality of their sources and unpublished materials. This trust allows for a diverse, robust and independent media, which in turn gives us a more accountable and transparent system of government."

Alvarez explained, "As a journalist, I am trying to be as pono as I can in producing this film. I have promised everyone complete confidentiality, and I have promised everyone that the film and the interviews will not be released publicly until everyone in it has had a chance to review, comment, or object. Material that doesn't make it into the final published film is intended to remain confidential."

"The documentary deals with Hawaiian belief systems, burial practices, and issues that many people consider to be kapu," Alvarez continued to say: "If I'm forced to turn over these tapes we'll never be able to do a project like this again - lots of really important Hawaiian cultural preservation work simply won't happen because people will be too afraid to do it. The trust in the journalist will be destroyed."

Daniel Gluck, ACLU senior staff attorney, stated, "Hawaii's media shield law is designed to create an environment in which journalists like Alvarez can take on difficult and sensitive projects without having to fear court actions undermining their integrity. This case is about defending all media voices to make sure that attorneys cannot abuse the court's power - and cannot compromise journalistic integrity - just to 'fish' for information."

Attorney Bickerton was more direct: "Simply put, Brescia has no right to these materials. If he can't see that by reading the new law, we will ask the court to explain it to him."

I was a bit amused by one comment that followed the , Advertiser story:

And since when have film makers become journalists? The media shield law is suppose to protect journalists and film makers are not journalists.

Ummm, maybe that person should check out the documentary section at Blockbuster, instead of just the blockbusters.

While we’re on the subject of journalistic lawsuits, I gotta hand it to Charley Foster for blogging on something involving me that I didn’t even know about. Namely, that the Intermediate Court of Appeals upheld a lower court’s dismissal of a defamation suit filed by Wally Wilson against The Garden Island and past-reporter Dennis Wilkin, KPD, Honolulu Magazine and me.

Wilson wasn’t pleased that Dennis and I made references to him being a suspect in our coverage of the “serial killings” and sex assaults that occurred on Kauai’s Westside in 2000, and the lawsuit blamed the cops for divulging the info. It’s too bad “The Killing Year,” the piece I wrote for the August 2001 issue of Honolulu Magazine, isn’t archived on line, as I always thought it was one of the best stories I’ve ever written. It didn’t just cover the “serial killings,” but the six homicides and two near-homicides that were carried out on Kauai that year, and public attitudes about KPD.

At the time of the killings, Wilson was on parole for a rape, sex abuse and kidnapping conviction, which prompted an attorney friend, in reassuring me about the lawsuit, to remark: “It’s kind of hard to defame a convicted rapist.”

In regard to my coverage, the Intermediate Court found — and hat tip to Charley for the link — that:

The article did not state or infer that Wilson was in fact the Kauai serial killer or that he was very likely the Kauai serial killer. The plain meaning of the article is that Wilson was considered a subject in the attacks, a circumstance that Wilson readily concedes…. We conclude that the article could not rationally be understood as the author’s factual assertion that Wilson was the Kauai serial kiler or that he was very likely the Kauai serial killer.

We also reject Wilson’s claim that he was defamed by the article's statement that it was “widely accepted as fact” on Kauai that he was the suspected serial killer. The “widely accepted” characterization was a statement of the author’s opinion that was not susceptible of being proved true or false.

One thing I never did understand is why KHNL News 8 was never included in the suit, as the station was not only the first to name Wilson, it also ran his photo.

Wilson, who has denied any involvement in the Kauai attacks, has since served his time, and according to the sex offender registry, is now reportedly living on Oahu.

I wonder if we'll ever know for sure who committed those crimes.


Anonymous said...



Anonymous said...

"In preparing this documentary, Alvarez was unwittingly drawn into a legal battle..."

unwittingly? uh huh, suuuure...

I would think all JOURNALISTS would understand what they are getting into when they cover a story?

Ed Coll said...

"And since when have film makers become journalists? The media shield law is suppose to protect journalists and film makers are not journalists."

When have documentary filmmakers/videographers not been journalists? Traditionally this is a subset of investigative journalism. I did this professionally for years. Today under the Hawaii Shield law it appears anyone with a video enabled cell phone that captures an event and uploads it to the World Wide Web is now a journalist, (as long as proof can be provided that it is a public service). Wide spread dissemination of an original record of an event seems to be a public service to me. Does the number of "hits" (downloads) prove the public extent of service? How many "hits" constitutes proof?

The Shield law is unclear.

"I would think all JOURNALISTS would understand what they are getting into when they cover a story?"

Once something is "published" many (wise) "JOURNALISTS" destroy any unpublished material, the job is complete and there is no legal requirement to maintain notes, audio, video etc. The emerging CITIZEN JOURNALISTS would be well served by studying the trade craft of the "professionals" now being shown the door to extinction (starting with newspaper journalists).

Lets have a big SHOUT-OUT for the disruptive technology that allows anyone willing to make the effort to become journalist.

Ed Coll said...
This comment has been removed by the author.
Anonymous said...

i think its pretty cool of the aclu to help those guys. at the same time, joe b should get that material.....nobody is asking for confidential sources, just the work-product video which (per a relevancy test) probably does/would show relevant happenings on that footage

i bet (hope) that "protected information" ='s ~ "confidential sources"....not ~ "any and all material under the control of the journalist" (video, soil samples, bloody glove, etc)

plus, i bet you money that video has some sweet admissions of a party opponent

still, i hope joe b's lawyers arnt so stupid as to try and argue that film guy is not a journalist as viewed under the law. he is

and congrats on that Wally Wilson win, and nice job on calling him out too. very good


Anonymous said...

How in the heck can crimes like that go unsolved for so long? Doesn't the fbi get involved in Hawaii?

Anonymous said...

Congrats on getting the lawsuit dismissed!

As for Joe B, well I continue to think that he's partially a victim to attorneys who are charging by the hour and whose advice ensures more hours. Really, what will he DO with a million dollar judgment against the likes of Kaiulani and Aunty Louise if he gets one? He can probably recover a few pennies on the dollar in bankruptcy - and far less than he will have paid his lawyers for ruining his public image.

There is a solution out there and it involves the State paying Joe B some money, because Nancy M's laziness, ignorance and incompetence, along with his lawyers apparently advising a Superferry-like (just plow them over) approach, got him into this mess in the first place.

awolgov said...

Brescia shouldnʻt have the right to see Keoniʻs property.

He needs to dig up his own evidence and not demand somebody elseʻs work to do the work for him.
Even without the shield law, itʻs stretching the intrusive line. Maybe it is an illegal search & seizure as well.

The film project itself is personal property especially if the photographer was not standing on ʻBresciaʻs propertyʻ or named as a defendant in his suit.

And wouldnʻt it be considered intellectual property rights as long as, as Keoni says, he obtains waivers from all persons in the film?

What if the film was never made known? What if thereʻs more out there (inadvertent photos/videos)? Will Brescia put out a public notice that any and all photos/videos taken of ʻhis propertyʻ be turned over to his lawyers?

Like heʻs the law of the land. Hardi har har.

Anonymous said...

Brescia overreached. He should have asked for only evidence of trespassers on his property.

Katherine Nelson said...

Aloha Joan,

I have been doing research for about 6 months about missing persons on Kaua'i and your article could be relevant. Would you email me a copy of the article you wrote, "The Killing Year". I have read many blogs and articles on the internet about the 2000 rape/murders. Possibly your article may contain information I have not already encountered that could be useful in my attempt to connect the dots. I will of course reference your article if it leads me anywhere and if I get something published.

Katherine Nelson

Anonymous said...

Katherine Nelson

July 4, 2009 10:28 PM

Maybe it would be wise to investigate this personʻs true intent, Joan.