Musings: Dirty Water, Dirty Laundry

A fine rain continues to fall, even as the Kapaa bypass road remains flooded out, muddy potholes gape on side streets and a huge excavator rumbles its way north, where mud slides have made the highway impassable in several spots and isolated some communities on that side for three days now.

I was listening to reports of the problems that arise when nearly three feet of rain fall on households that have cesspools and septic systems that cease to function well and overflow, and how the challenges are increased when the electricity is off and food supplies are running low. Once again, we're reminded why it's unwise to have so many vacation rentals on the west side of the Hanalei bridge.

It's going to take a while to dig out from this one, and even longer for the beaches and reefs to recover from all the dirty water that's been washed into the sea.

Meanwhile, county Prosecutor Shaylene Iseri-Carvalho is trying to recover after her office's very dirty laundry was aired in a motion filed last Friday by the Kauai Humane Society.

Forgoing a scheduled trip to Las Vegas to appear in court this morning, Iseri-Carvalho was joined by Deputy Prosecutors John Murphy and Melinda Mendes in trying to beat back the Humane Society's attempt to have her recused from the Lara Butler-Brady horse abuse case.

But though Judge Randal Valenciano ruled that KHS lacked standing to bring the complaint, the agency seems poised to get what it wants, which is to see the case move forward under a different prosecutor.

That's because the prosecutor's office filed its own motion to withdraw from the case, citing a conflict of interest. Mendes told the judge a conflict exists because the case may involve witnesses who are employed by the prosecutor's office, “as well as other factors that the court has been made aware of.”

Mendes was apparently referencing allegations raised in the signed affidavits from KHS staff that Iseri-Carvalho improperly threatened to dismiss the case against Butler-Brady unless the agency fired investigator Jessica Venneman.

Mendes said the prosecutor's office plans to notify the state Attorney General of the conflict today in hopes it will agree to try the case. But Valenciano asked prosecutors how that request would affect the oft-delayed trial, since jury selection is due to start Monday.

Former prosecutor Craig DeCosta, pressing for Butler-Brady's right to a speedy trial, pointed out that the conflict of interest outlined in the KHS complaint dates back to January. “It's not like this just came up,” he said.

Valenciano agreed to continue the motion to withdraw until Thursday so that Iseri-Carvalho could get a sense of whether the AG's office will indeed take the case.

The judge next considered the prosecutor's motion to have the KHS motion stricken and sealed, which means the documents already posted on this blog would no longer be public records. Murphy claimed the documents included discussions between Mendes and KHS that “should be private.”

Murphy said that KHS attorney Dan Hempey had released the documents to this blog in an attempt to try the case in the media and get private communications out into the public.

As an aside, I'd like to take this opportunity to set the record straight: I got the documents from my own sources, not from Hempey.

DeCosta said he also would like to have some of the attachments sealed, including two photos of emaciated horses and an email from Iseri-Carvalho to KHS in which she states that the case will be dismissed because the agency has “not resolved the issues regarding your employee.”

The judge said he would either seal the entire file or none of it. At Iseri-Carvalho's suggestion, he agreed to continue the matter until Thursday.

Valenciano did note that the case had already received extensive pre-trial publicity. He said a very large juror pool is scheduled to convene on Monday in hopes of finding impartial jurors who can give Butler-Brady a fair trial.

DeCosta said KHS “has even put on its own website several pieces of evidence that will be presented in this case,” which he thought might prevent his client from getting a fair trial.

“If KHS wants to jeopardize its own case, that's its right,” said Valenciano, noting that he was not inclined to strike and seal the file. “We will just have to deal with that in jury selection. But I don't want the attorneys running to the media to try this case in the media.”

Earlier, in responding to the KHS motion, Valenciano said the prosector is not mandated to try any case that comes before her and she has the discretion to dismiss a case, even when she had previously agreed to prosecute it.

KHS had expressed fears that Iseri-Carvalho would follow through on her plans to dismiss the case, which means the horses likely would be returned to Butler-Brady and KHS would lose all chance to recover the $70,000 it's spent caring for the horses pending trial.

Valenciano told Iseri-Carvalho that “the court would expect the state to continue to assess the case and the credibility of its witnesses.”

Valenciano also rapped Hempey, and caught DeCosta off-guard, by inquiring whether DeCosta wanted to ask for fees. DeCosta stumbled a bit, then said sure, with the judge announcing he would award legal fees to DeCosta, but not the state.