BY JIM DOOLEY – Prominent criminal defense attorneys are scoffing at Honolulu Prosecutor Keith Kaneshiro’s stated positions that he will no longer plea bargain cases and that he is under no obligation to turn over certain evidence in criminal cases.
In an exclusive interview yesterday with Hawaii Reporter, Kaneshiro said he is requiring his deputies to take cases to trial and will only plea bargain in rare instances such as when a prosecution witness is unavailable for trial or when the plea deal results in the same penalty as a trial conviction.
“He’s just political grandstanding,” said Myles Breiner, president of the Hawaii Association of Criminal Defense Lawyers.
“The fact of the matter is he has to plea bargain. There’s just too many cases and too many bad cases,” said Breiner.
Longtime criminal defense lawyer Brook Hart estimated that “90 per cent of cases are resolved through plea agreements.”
Jack Tonaki, head of the Hawaii Public Defender’s Office, said he thinks the figure is even higher.
“The reality is that if one day he says there will be no (plea) agreements, everything will pretty much come to a halt,” Tonaki said.
The same attorneys took exception to Kaneshiro’s position that his office doesn’t need to inform defense counsel if a prosecution witness has given inconsistent statements about a crime.
That position has prompted the filing of an ethical complaint against Kaneshiro with the state Bar Association’s disciplinary board.
Kaneshiro acknowledged yesterday that he did tell two deputies in his office that they did not have to inform the defense in a domestic violence case that the victim had given inconsistent statements about the crime.
“What the victim said was, her statement was a little bit different, she left out some facts so it was not totally consistent with earlier statements,” Kaneshiro said.
“There’s case law that says an inconsistent statement is not recantation, it is not discoverable (evidence)” which must be turned over to the defense, Kaneshiro said.
“That’s utter nonsense,” said Breiner today.
Court rules and federal and state case law “require disclosure of any statement by a percipient witness whether it supports or doesn’t support the prosecution theory of the case,” said Breiner.
Hart said the U.S. Supreme Court has ruled that “the Constitution requires the government when it has inconsistent evidence to turn it over to the defendant at the earliest possible time.”
There can be legitimate questions about whether information is relevant to a case, Hart said.
“It might or it might not be material. But the most enlightened prosecutors readily turn over all this information so that later, cases are not subject to reversal on appeal
because of a failure to provide exculpatory evidence,” Hart said.
Tonaki cited a state criminal procedure rule which requires prosecutors to turn over evidence which would tend to negate the guilt or lower the potential punishment of a defendant.
The key phrase is “tend to negate,” said Tonaki.
“We always differ in our interpretation of the rules and ultimately its decided by the court but I think that if a material witness in a case changes their story, that may have the effect of tending to negate the guilt and it should be disclosed,” Tonaki said.
Several attorneys noted that in the high-profile rape prosecution now pending in New York against former World Bank President Dominique Strauss-Kahn, prosecutors informed the defendant’s attorneys of inconsistencies in statements given about the case by the complaining witness after Strauss-Kahn was charged.
And attorneys also questioned the accuracy of Kaneshiro’s assertion that the prosecutor’s office under previous head Peter Carlisle had a jury trial conviction rate of just 33 per cent.
Kaneshiro spokesman Dave Koga said today the office is gathering the data supporting the 33 per cent conviction rate figure.
In 2005, the Honolulu Advertiser published the results of a study that showed the felony trial conviction rate for Carlisle’s officer that year was 67 per cent. The same story said several times that the corresponding acquittal rate was 33 per cent.
Carlisle, now Honolulu Mayor, has not responded to requests for comment on Kaneshiro’s statements. Several of the 34 deputy prosecutors who left the office after Kaneshiro was sworn in have since gone to work in Carlisle’s administration.
Kaneshiro said some of the deputies departed because they preferred to plea-bargain cases and didn’t want to argue them in court.
Details of the ethics complaint filed against Kaneshiro are unknown because proceedings in the Office of Disciplinary Counsel are confidential.
Kaneshiro said Monday that the complaint was filed against Kaneshiro by a former high-ranking deputy prosecutor, Kevin Takata, who was forced out of the office after Kaneshiro was elected.
Takata has an “an axe to grind,” Kaneshiro said.
The disciplinary complaint “is completely untrue,” Kaneshiro said. “I have never told my deputies not to disclose discoverable material or exculpatory evidence.”
Takata, who is now a state deputy attorney general, declined to comment on the disciplinary complaint, saying it is confidential.