TMT Hawaii News Now Exposed for Fraudulent Omissions and Misrepresentations in a Reply from Celebrity Dr. Leonard G. Horowitz
To: Mahealani Richardson‘s article published
Reply published September 12, 2019 at 2:51 PM HST.
Dear Ms. Richardson:
This mail presents constructive legal notice following your superiors’ decision to publish your writing in the linked article titled, “High profile attorney threatens to sue over ‘vicious’ TMT rumors”, posted September 11, 2019.
My name is Dr. Leonard G. Horowitz. I am a citizens’ advocate, publisher, and real party-in-interest in the subject addressed in your article.
I provide this Notice in good faith, to inform you regarding the likelihood of your article and actions being subject to claims of wrongdoing, for tortuous abuse of the media, and possibly complicity in crimes of racketeering unbecoming the good reputation of Hawaii News Now .
Your article evidences fraud by omission, threatens civilian investigators and whistleblowers, and substantially and irreversibly taints the Hawaii court system with lopsided (prejudicial) “news”.
Assuming the accuracy of your quote in the subject article, attorney Michael Green appears to have violated the Hawaii Rules of Professional Conduct, Rule 1.6. CONFIDENTIALITY OF INFORMATION, by threatening lawsuits against those allegedly spreading “rumors,” and stating:
“‘Protest, everyone has a right to do that, but don’t be so vile so vicious to do something to this husband and his wife and their family,’ said Green, Long’s attorney. The high profile attorney does not represent the Ige’s.”
Your article overlooks the vicarious representation of Gov. Ige’s position by attorney Green. You make clear, however, Green exclusively represents the Long’s enterprise. Nevertheless, HRPC Rule 1.6 states in relevant part:
“(c) A lawyer shall reveal information that clearly establishes a criminal or fraudulent act of the client in the furtherance of which the lawyer’s services had been used, to the extent reasonably necessary to rectify the consequences of such act, where the act has resulted in substantial injury to the financial interests or property of another.”
Here, the property interests of thousands of justice seekers are being threatened or damaged.
Your article falsely represents the crux of this entire matter. You have prejudicially twisted the issue to aid-and-abet attorney Green’s alleged ethics rule ‘oversight.’ Your article clearly exploits the “high profile attorney’s” retaliatory defense. You too insidiously and erroneously presume or infer allegedly “vile” people are spreading defamatory ‘rumors’ against the Longs and Governor Ige.
You committed a ‘fraudulent concealment’ and misrepresentation by writing, “TMT paid $3 million to Private Security Group run by Charles Long since 2015 for security at its construction site at Mauna Kea.”
That misrepresentation omits the presumed annual payments that any reasonable person would presume had been paid, after having read the public records presented.
Only one tax return, the 2015 Tax Return, was published by the investigators. What about the other tax returns?
You misrepresented the Long’s “professional services” contract with TMT to have paid their enterprise only $3 million “since 2015.”
Upon what evidence is this statement based?
That statement is unreasonable. It implies the Long’s firm was paid nothing for its “security services” during the tax years 2016 thru 2019.
This omission is substantive. It does not reflect “rumors” as you wrote. It only creates the false rumor that payment only occurred in 2015. It accepts the not-yet proven truth that all 2015 payments, and subsequent (neglected) payments, were each above-board.
Another misrepresentation you wrote, that there are no “financial ties to the Thirty Meter Telescope,” is unreasonably presumptive. Under the circumstances, with the evidence in hand, it recklessly hinders discovery, due process, and justice.
How do you define “financial ties”, other than taboo?
You omit and neglect Melanie Long’s common “financial ties” to her husband and agency for the Iges in purportedly “separate” enterprises.
Add to this “fraud by omission” the extreme bias your article shows by violating the ethical rules of the Society of Professional Journalists, (These include: “Diligently seek subjects of news coverage to allow them to respond to criticism or allegations of wrongdoing; – Be vigilant and courageous about holding those with power accountable. Give voice to the voiceless; Support the open and civil exchange of views, even views they find repugnant; Recognize a special obligation to serve as watchdogs over public affairs and government. Seek to ensure that the public’s business is conducted in the open, and that public records are open to all; Never deliberately distort facts or context . . . ; Avoid stereotyping. Journalists should examine the ways their values and experiences may shape their reporting.”)
Contrary to these ethics rules your article stereotypes the citizen-investigators/whisleblowers as “vile” and “vicious” which they are not.
And you have stated only one side of the story, wide-spreading the ‘rumor’ across Hawaii that any allegations of wrongdoing by the governor and the Longs regarding TMT is “without merit,” and coming from derelict people.
Section 551 of the Restatement (Second) of Torts makes what you and your superiors have done a ”liability for wrongful non-disclosure, or fraud by omission,” according to Miyashiro v. ROEHRIG, ROEHRIG, WILSON, 228 P. 3d 341 – Haw: Intermediate Court of Appeals 2010.
Understanding that parties-in-interest are anticipating official civil and criminal proceedings on these matters, and pursuant to your published threat of litigation by attorney Green targeting those “vile” people spreading ‘rumors’, I wonder if you even realize that you have aided-and-abetted by willful blindness attorney Greens alleged commission of a Class C felony under §710-1071 Intimidating a witness law?
Miyashiro (Id.) makes Hawaii News Now subject to civil liability for damages caused by attorney Green’s statements that clearly reflect your agency’s bias in favor of the TMT, and the presumed ‘racketeering enterprise’ opposed by The Protectors suitable for a civil RICO action.
Hawaii News Now is also subject to the business transactions of its readers and news viewers. The damages and civil action that came from heralding the false nuclear strike is one example. The social impacts caused by your exclusive reliance on attorney Green make you and attorney Green subject to the provision of Section 551 of the Restatement (Second) of Torts.
That is, quoting Miyashiro, “(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated, (a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them[.]”
For attorney Green, this advisement pertains to his ethics rule HRPC Rule 1.6 as aforementioned.
Accordingly, your personal and/or corporate response to this notice is hereby solicited. A public apology to your readers is in order. A more respectable and balanced article disclosing both sides of the controversy should be published immediately to prevent further irresponsible prejudice and even damage to persons and properties. All of the controversial evidence in public records upon which the alleged “rumors” and claims are based must be presented to your readers and viewers to comply with your public duty and ethics rules.
In closing, I direct you, your legal staff, and attorney Green as well, to Sheppard v. Maxwell, 384 US 333 – Supreme Court 1966. This careful review by the nation’s highest court should be known to attorney Green and your legal team.
The fact is, your prejudicial article has irreversibly tainted all due process in these matters throughout the State of Hawaii. It has necessitated pending litigation(s) to be brought out of state, as the Sheppard court explained.
Perhaps this was your group’s motive–to preclude local TMT opponents a fair trial locally, necessitating added burdens.
I have selected and included below a few paragraphs from Sheppard for your consideration.
In the Spirit of Public Advocacy, Candor, and Media Reputability,
[Editor’s Note: It is material to these proceedings that Hawaii News Now‘s institutional sponsors be known. Leading stockholders in parent corporation Gray Television, Inc. are listed in the following NASDAQ table. NBC and CBS television networks are both “dual affiliates” of Hawaii News Now, as shown below.
Excerpts from Sheppard v. Maxwell, 384 US 333 – Supreme Court 1966.
“[C]oncluded that Sheppard did not receive a fair trial . . . because of the trial judge’s failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution.”
The first row [of the courtroom] was occupied by representatives of television and radio stations, and the second and third rows by reporters from out-of-town newspapers and magazines. One side of the last row, which accommodated 14 people, was assigned to Sheppard’s family and the other to Marilyn’s. The public was permitted to fill vacancies in this row on special passes only. . . . [I]ndeed, one television broadcast carried a staged interview of the judge.”
The jurors themselves were constantly exposed to the news media. Every juror, except one, testified at voir dire to reading about the case in the Cleveland papers or to having heard broadcasts about it.
(@350) “The principle that justice cannot survive behind walls of silence has long been reflected in the “Anglo-American distrust for secret trials.” In re Oliver, 333 U. S. 257, 350*350 268 (1948). A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries.
The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. This Court has, therefore, been unwilling to place any direct limitations on the freedom traditionally exercised by the news media for “[w]hat transpires in the court room is public property.” Craig v. Harney, 331 U. S. 367, 374 (1947).
The “unqualified prohibitions laid down by the framers were intended to give to liberty of the press . . . the broadest scope that could be countenanced in an orderly society.” Bridges v. California, 314 U. S. 252, 265 (1941). And where there was “no threat or menace to the integrity of the trial,” Craig v. Harney, supra, at 377, we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.
But the Court has also pointed out that “[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Bridges v. California, supra, at 271. And the Court has insisted that no one be punished for a crime without “a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.” Chambers v. Florida, 309 U. S. 227, 236-237 (1940).
“Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.” Pennekamp v. Florida, 328 U. S. 331, 347 (1946). But it must not be allowed to divert the trial from the “very purpose of a court system . . . to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the 351*351 courtroom according to legal procedures.” Cox v. Louisiana, 379 U. S. 559, 583 (1965) (BLACK, J., dissenting).
Among these “legal procedures” is the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources. Thus, in Marshall v. United States, 360 U. S. 310 (1959), we set aside a federal conviction where the jurors were exposed “through news accounts” to information that was not admitted at trial.
We held that the prejudice from such material “may indeed be greater” than when it is part of the prosecution’s evidence “for it is then not tempered by protective procedures.” At 313.
At the same time, we did not consider dispositive the statement of each juror “that he would not be influenced by the news articles, that he could decide the case only on the evidence of record, and that he felt no prejudice against petitioner as a result of the articles.” At 312.
Likewise, in Irvin v. Dowd, 366 U. S. 717 (1961), even though each juror indicated that he could render an impartial verdict despite exposure to prejudicial newspaper articles, we set aside the conviction holding:
“With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion . . . .” At 728.
The undeviating rule of this Court was expressed by Mr. Justice Holmes over half a century ago in Patterson v. Colorado, 205 U. S. 454, 462 (1907):
“The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”
Moreover, “the burden of showing essential unfairness. . . as a demonstrable reality,” Adams v. United 352*352 States ex rel. McCann, 317 U. S. 269, 281 (1942), need not be undertaken when television has exposed the community “repeatedly and in depth to the spectacle of [the accused] personally confessing in detail to the crimes with which he was later to be charged.” Rideau v. Louisiana, 373 U. S. 723, 726 (1963). In Turner v. Louisiana, 379 U. S. 466 (1965), two key witnesses were deputy sheriffs who doubled as jury shepherds during the trial.
The deputies swore that they had not talked to the jurors about the case, but the Court nonetheless held that, “even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association . . . .” At 473.
Only last Term in Estes v. Texas, 381 U. S. 532 (1965), we set aside a conviction despite the absence of any showing of prejudice. We said there:
“It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.” At 542-543.
And we cited with approval the language of MR. JUSTICE BLACK for the Court in In re Murchison, 349 U. S. 133, 136 (1955), that “our system of law has always endeavored to prevent even the probability of unfairness.”
“[T]he arrangements made by the judge with the news media caused Sheppard to be deprived of that “judicial serenity and calm to which [he] was entitled.” Estes v. Texas, supra, at 536.
Indeed, every court that has considered this case, save the court that tried it, has deplored the manner in which the news media inflamed and prejudiced the public.
Much of the material printed or broadcast during the trial was never heard from the witness stand, such as the charges that Sheppard had purposely impeded the murder investigation and must be guilty since he had 357*357 hired a prominent criminal lawyer; that Sheppard was a perjurer; that he had sexual relations with numerous women; that his slain wife had characterized him as a “Jekyll-Hyde”; that he was “a bare-faced liar” because of his testimony as to police treatment; and, finally, that a woman convict claimed Sheppard to be the father of her illegitimate child.
As the trial progressed, the newspapers summarized and interpreted the evidence, devoting particular attention to the material that incriminated Sheppard, and often drew unwarranted inferences from testimony. At one point, a front-page picture of Mrs. Sheppard’s blood-stained pillow was published after being “doctored” to show more clearly an alleged imprint of a surgical instrument.
From the very inception of the proceedings the judge announced that neither he nor anyone else could restrict prejudicial news accounts. And he reiterated this view on numerous occasions.
Since he viewed the news media as his target, the judge never considered other means that are often utilized to reduce the appearance of prejudicial material and to protect the jury from outside influence.
We conclude that these procedures would have been sufficient to guarantee Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant press nor the charges of bias now made against the state trial judge.
“Let it be now understood that if Dr. Steve Sheppard wishes to use the newspapers to try his case while we are trying it here, he will be barred from remaining in the court room during the progress of the trial if he is to be a witness in the case.
“The Court appreciates he cannot deny Steve Sheppard the right of free speech, but he can deny him the . . . privilege of being in the court room, if he wants to avail himself of that method during the progress of the trial.”
Hawaii Rules of Professional Conduct
A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.