Mimesis Law
22 July 2019

Not Even Hawaiian Sunlight Disinfects Brady Violations

September 27, 2016 (Fault Lines) – Honolulu criminal defense attorney Richard Holcomb filed a petition last week with the Hawaii Supreme Court asking the Court to keep prosecutors from cheating. His complaint is pretty routine. When prosecutorial misconduct becomes so commonplace it’s not really even news anymore, what’s the explanation?

Holcomb is a DUI lawyer in Hawaii, and regularly seeks disciplinary records for the police who arrest his clients. According to a report by the Honolulu Civil Beat, he is looking for red flags like officers who tend to falsify reports or beat the crap out of people. These are important things to know when defending a criminal case.

If it isn’t obvious, a police officer who makes stuff up will probably keep making stuff up. It’s the exact same reason you don’t trust regular people who lie. When your significant other or your kid or you best frenemy, or whoever, lies to you, isn’t it fair to think they might keep lying? There is nothing special about the police. If an officer is dishonest, isn’t it just as fair to paint him with the same brush?

Along the same lines, cops aren’t supposed to beat people up. When they do, they might get in trouble. Unless they can tag them with the “criminal” label. In today’s society, nobody likes criminals. So nobody cares if they get beat up. So the easiest way to get out of trouble for beating up some regular Joe? Easy. Make up some criminal charges against him. And Holcomb probably knows one of the easiest ones to make up is drunk driving. You were sober? Well, then, why were you fighting the police?

Holcomb seems to have been battling with Hawaii prosecutors over disciplinary records for police officers. This is a simple issue, and one that should be pretty well-settled by now.

It’s not an outlandish request, either. Federal law requires prosecutors to turn over any evidence that could be used to refute their claims, including misconduct by police officers, to ensure a defendant receives a fair trial.

There should be little question that a police officer’s prior perjury is relevant to a current criminal case. This isn’t some novel idea. And it’s not some “defendant-friendly” loophole. It’s what happens in every criminal case. If a defendant, or a witness, has been dishonest in the past, it will come up if they testify. So why not the same treatment for the police?

Apparently Honolulu prosecutors either don’t see the problem or don’t care about it.

Honolulu Prosecuting Attorney Keith Kaneshiro, who is running for re-election in this year, said he couldn’t comment on the specifics of Holcomb’s petition.

“Our practice is we respond and we present as much information as we’re able to, and some information does not come to us,” Kaneshiro said. “If we don’t have it we can’t respond to it. We don’t go out and purposefully try to withhold information from defense attorneys and defendants.”

It doesn’t sound like Kaneshiro is being entirely forthright.

Holcomb questioned why in these cases prosecutors continually failed to notify him or his colleagues of ongoing investigations of those officers, which included allegations ranging from threatening a woman with a brick and dealing drugs to shaking down local bar owners and selling stolen cars.

Even worse than those allegations, how about a cop who did something directly relevant to the case at issue?

Jonathan Burge was representing a client who had been arrested by HPD officer Ryan Yamaato in March 2015 for driving under the influence of an intoxicant.

Yamaato had been charged in 2012 with tampering with a government record stemming from allegations he falsified documents in a drunken driving case. Yamaato pleaded no contest and struck a deal that resulted in the case being dismissed after six months.

Burge had learned from a fellow defense attorney that Yamaato had been investigated and charged for falsifying a police report. The problem was Burge couldn’t find any record of it because the documents had either been sealed or purged.

Prosecutors also didn’t go out of their way to provide Burge with the information, and in fact, it took a judicial order to get them to admit in a one-page letter that they had prosecuted Yamaato three years earlier.

The charge Officer Yamaato pled to was not some unrelated shenanigan a tricky defense attorney can use to muddy the water. He actually was charged with, and did not contest, faking documents in a drunk driving case. Just so we are clear: in a drunk driving case, the attorney thought he should have been told about a previous drunk driving case where the same arresting officer faked the evidence.

Who was hiding this? The usual suspects.

Prosecutors had to be ordered by a judge to give up the information. That kills a lot of the usual excuses. They knew about it, because they handled the case. So they can’t claim the police were hiding it from them, too. They knew the defense wanted it, because the defense made a motion to get it. So no claims it was inadvertent. This was intentional withholding of evidence.

This is frustrating because it just won’t stop. The petition Holcomb filed with the Hawaii Supreme Court will probably get ignored, or brushed aside, or given lip service.

The frustration is compounded by the fact it is so unnecessary. The adoring public laps up whatever the prosecution feeds them. The ex-prosecutor judge might throw up a few half-hearted speed bumps on the way to a conviction. And the appellate courts rarely see an error that wasn’t harmless, or compared to overwhelming evidence, or whatever else keeps the conviction in place. There isn’t any need to cheat because the playing field was never level to begin with.

Any civil lawyer knows part of trial law is dealing with bad evidence, bad witnesses, bad whatever. You don’t pick your witnesses. They are there long before the lawyer gets involved. In civil discovery, the evidence gets turned over. It gets dealt with. The case gets tried. When there is more integrity in a run of the mill car wreck case than a criminal prosecution, there is a problem.

The title of this post isn’t a rhetorical question. I would love to hear some answers. What’s so hard about turning over evidence? So it hurts your case. Boohoo. Why not see if you can win despite that? Better yet, if you can’t win without cheating, why not admit maybe your case isn’t as great as you thought. Are you cheating because you can’t win fair and square? Or are you cheating because you don’t consider it cheating? Or are you cheating just because you can?

4 Comments on this post.

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  • Brian
    28 September 2016 at 10:28 pm - Reply

    Maybe it’s time we see a national registry or database for these things. I mean, if police and prosecutors can have numerous private databases of DNA evidence with little to no oversight, why can’t defense lawyers have a database of officers and prosecutors accused of and/or convicted of perjury, planting evidence, and the like?

    Maybe it’s time to stop waiting on the system to do the right thing and just do it ourselves.

    (Disclaimer: I am not a cop or lawyer, and have no idea if such a thing is even legal.)

  • andrews
    29 September 2016 at 6:43 am - Reply

    Of course it would be legal. Collecting and disseminating truthful information about matters of public concern enjoys the highest level of protection under the First Amendment.

    The question is whether you can find a busy lawyer with enough time to collect and publish such a thing.

  • Brian
    29 September 2016 at 3:58 pm - Reply

    I must respectfully disagree, I’m afraid. Between all of the formats readily available on the Web, there must be one suited to this sort of thing. My bet would be on a wiki – which is also a “free” format I believe. And I would find it hard to believe that public defender offices around the country aren’t already keeping their own lists, even if only for survival.

    The best part? You wouldn’t actually need a lawyer, just a webmaster. A concerned citizen would do the trick, I think.

    Unfortunately, this is usually when I’d volunteer, but I have no experience and less than zero time right now. Still, I’ll see if there’s anything I *can* do. Making sure the justice system in this country works as intended is something in every American’s best interest, regardless of intent to ever commit a crime.

    • Dave L
      30 September 2016 at 3:00 pm - Reply

      Brian, look to Chicago for some examples of what is currently being tested out. These are both civilian led inititives.

      The first is the Citizens Police Data Project which is based off of police complaint records (they had to go to court and have a judge uphold each years worth of FOIA requests and order the CPD to release them). Still in Beta but interesting as a model. http://invisible.institute/police-data/

      Another example out of Chicago is the “Settling for Misconduct” project compiled by the Chicago Reporter. This focuses on the settlements and payouts for the City of Chicago. http://projects.chicagoreporter.com/settlements/

      Of course these being civilian led initiatives they are prone to fall out of date as funding and interest wane, however they are examples of a potential transparency measure that could be scaled for nationwide.

      I am also curious of what any Chicago attorneys out there think of these. Have they used them to find out something about the PEO’s trying the cases? Is information taken from these sources regarding perjury or false arrest even admissible?