Musings: Prosecutors Lawyer Up

Responding to what County Attorney Al Castillo termed “a very unusual and special circumstance,” the Kauai County Council last night agreed to spend up to $15,000 on a private attorney to handle Prosecutor Shaylene Iseri-Carvalho's POHAKU problems..

Council Chair Jay Furfaro took pains to note the special counsel would be representing the prosector's office in a civil, rather than criminal, defense.

But from the limited exchange that occurred in public session, it appeared the county does not yet know whether criminal violations have occurred. It also seemed, from Al's comments, that Shaylene will be directing the special attorney with no oversight from his office.

Councilwoman JoAnn Yukimura asked whether the money would be refunded if it was determined the legal problems arose from conduct outside the scope of the prosecutor's duties.

“At this point in time, I don't want to speculate.” Al replied. “The conduct not being within the scope takes it into a criminal, not a civil matter. I don't want to speculate where this goes. It's safe for me to say the request is simply for matters regarding the POHAKU program and it's all civil.”

“Is it for ethics violations as well?” JoAnn asked. “This is about how this money is going to be used if we appropriate it.”

“Whatever investigation occurs regarding the POHAKU program is what's going to happen,” Al responded. “Whatever the outcome of the investigation is is the outcome.”

“If a county employee is under investigation for an ethics violation, are they entitled to special counsel?” JoAnn pressed.

“Then the question becomes whether or not that county employee at the end of the day is found to have violated any ethics or charter provisions,” Al said. “But ... we can make the determination at that point in time whether legal representation from the council was appropriate.”

Concerns have been raised about the prosecutor's relationship to Strategic Justice Partners, a restorative justice consulting company that lists first deputy prosecutor Jake Delaplane as its agent. It's also unclear whether Shay followed the state procurement process in hiring the firm.

Councilwoman Nadine Nakamura called for the question (vote) — a move that effectively ends  further discussion — but JoAnn overrode her and asked whether the request for special counsel applied to the prosecutor and deputies as individuals, or the Office of the Prosecuting Attorney.

“This is to the Office of the Prosecuting Attorney and special counsel for that office,” Al said. “I am not in control of any matters thereafter.”

Councilman Tim Bynum noted that Councilmembers were barred from asking Shay questions about the POHAKU program during her April 20 budget hearing. He said she also refused to answer written questions until she had special counsel.

“Will this facilitate us asking the questions that we wanted to ask, programatic, about the POHAKU program?” Tim asked.

“It will facilitate it to the point where you may ask any question that you want as a Councilmember,” Al replied. “The response that you get I have no control over.”

Although Tim and JoAnn earlier asked for the prosecutor to return to finish answering questions about her proposed budget, Jay did not schedule such a session.

Al also confirmed, in response to a question from Tim, that the request for special counsel stemmed in part from allegations Shay made in an email and during her budget hearing. She accused the county attorney's office of continually working against the interests of her office, repeated conflicts of interest and “constant attacks.”

Only JoAnn voted against the request for special counsel. Tim said he voted for the request after the amount was reduced from $30,000 to $15,000 and it was clarified the money would be used for  civil matters. He also empathized with Al, saying it's "hard for County Attorney to represent OPA when they are making repeated and multiple allegations." 

Prior to going into executive session, JoAnn noted, “For the record, I think there is still a conflict of interest on Mr. Kualii's part. I'm sorry to have to bring it up again.”

KipuKai works for the YWCA, which manages the victim-witness program that Shay transferred from her office to the Y.

Meanwhile, Shay continues to wage a deft public relations campaign, yesterday distributing a news release about how she's gotten grant funds to re-open “cold case” murder unit.

I'll be curious to see whether Shay, who has made much hay about her track record in prosecuting crimes against women, goes after such politically prickly “cold cases” as the westside serial killings and Lauren Kagawa murder. And will she finally be able to get charges pressed against the guy who murdered Amber Jackson?

It's quite amusing to see Shay take credit for programs she thinks will play well with the electorate. But she invariably assigns Jake to carry out the more odious duties, such as trying the case against Tim in the newspaper, even though it's already been dismissed.