County Prosecutor Shaylene Iseri-Carvalho suffered a major defeat yesterday when Circuit Judge Kathleen Watanabe dismissed a misdemeanor case against Councilman Tim Bynum.
The judge's order came after Special Deputy Attorney General Richard Minatoya conducted an extensive investigation and asked for a dismissal. Minatoya was appointed to the case after the judge recused Shay's entire office for conflict of interest.
"Mr. Bynum is deeply grateful to the Court for removing the Kauai prosecutor from this case and to the Attorney General's Special Counsel for conducting the thorough investigation that proved his innocence,” said Tim's attorney, Dan Hempey, in a press release distributed last night.
The trouble began on April 14, 2010, when planning inspectors Patrick Henriques and Sheilah Miyake — acting on a tip — came onto Tim's property while he was at a Council meeting and peeked in his windows. They allegedly spotted a rice cooker on the counter of his family room and a refrigerator.
The next day, the planning department sent Tim a “cease and desist” letter advising him of two violations of the zoning code, which he then worked to clear.
Some 19 months later, Shay charged Tim with four criminal misdemeanors, claiming that the presence of the appliances transformed the family room into an unpermitted second kitchen. Each count carried a maximum penalty of one year in jail and a $2,000 fine.
Though the prosecutor's office claimed it had not singled Tim out for prosecution, many thought Shay was waging a personal vendetta against Tim, her political enemy from the days they served together on the County Council. That assessment gained credence when Judge Watanabe recused the prosector's office on April 5, saying its continued participation in the case would be highly improper, and there was a compelling public interest for the Attorney General's office to intervene.
As I reported at the time, the recusal hearing included testimony from one of Shay's former deputies, who recounted her office's scheme to mislead and secretly tape record a crime victim in hopes of digging up dirt on Tim.
According to court transcripts of the recusal hearing, Watanabe told First Deputy Prosecuting Attorney Jake Delaplane (emphasis added):
Thank you. I've heard more than I need to hear at this point. Mr. Delaplane, your request to the court and your reasoning for it has supported this motion for recusal. You know, to protect the integrity of the process, and when I say the process I mean the prosecution and the judicial process, your office should no longer be involved in any manner whatsoever with State v. Bynum. And as such this court is ordering that your entire office, and I don't mean just Ms. Iseri Carvalho or you, Mr. Delaplane, but your entire office is disqualified from further prosecuting this case and the matter will be turned over to the attorney general's office.
The idea that Shay was waging a political vendetta gained more traction when she sent a Jan. 19, 2012 letter to the County Council demanding that Tim be recused from all review and deliberations involving her office while the criminal case was pending.
In that letter, which she marked confidential but later released to the media, Shay stated that “Bynum's paranoid belief that the actions taken by our office were calculated personal attacks against him is without any merit and is completely baseless.”
Shay went on to assert that the planning department had investigated the case and referred it to her office for prosecution — a claim later determined to be false. She also said Tim had a “vested interest” in ensuring her office did not function properly.
The case against Tim, which he said cost him thousands of dollars in legal fees and took a toll on his health and well-being, was dismissed with prejudice, which means the charges can never be filed again. It's unclear how much the case has cost taxpayers, or how much more it may cost if Tim decides to pursue a civil rights action against the county.
I'll be reporting more of the gory details in a subsequent post, but in the meantime, check out the initial motion to recuse, which Watanabe granted, as it contains more examples of Shay's smarmy moves in this case.