Musings: Down the Rabbit Hole

Live pono. Be pono.

— Campaign slogan of County Prosecutor Shaylene-Iseri Carvalho

One of Shay's former deputies was in court this morning, recounting her office's scheme to mislead and secretly tape record a crime victim in hopes of digging up dirt on Councilman Tim Bynum.

His testimony was presented in support of a motion to recuse Shay from prosecuting Tim on two misdemeanor counts for an alleged zoning violation. But after all was said and done, Circuit Court Judge Kathleen Watanabe went one step further than that.

“Your entire office is disqualified from prosecuting this case,” she told deputy prosecutor Jake Delaplane. “It will be forwarded on to the Attorney General's office.”

The judge later noted: “The court has very serious concerns about how this matter was handled.”

Lucas Burns testified he was working as a deputy prosecutor when Jake asked him to contact Victory Yokotake, who had been assaulted by another woman while living at Tim's house. He said Jake coached him to use the assault case as a guise for asking questions about the layout of Tim's house and the location of various appliances, which could be evidence of a zoning violation. And all the while, Lucas would be surreptitiously tape recording the conversation.

The plot was foiled when Lucas refused to play along. "I thought it was inappropriate to secretly tape record and try to come up with reasons why these questions were being asked when it was really to investigate Mr. Bynum," he told the court. "I thought doing this with a hidden tape recorder and without the full knowledge of the victim was inappropriate and not something the first deputy should be doing."

After cross-examining Lucas, Jake told the judge that he likely would need to take the witness stand himself to rebut Lucas' testimony. He asked for a delay so he could brief another prosecutor to handle the case until the recusal motion was decided.

Watanabe questioned why the prosecutor's office hadn't foreseen this possibility when Lucas was first presented as a witness.

Jake replied that it had, which is why it had sought a motion to keep Lucas from testifying.

Tim's attorney, Dan Hempey, objected to any delay, saying Jake knew well in advance what Lucas would be testifying about. Rules were in place, he said, to prevent “parties from playing fast and loose with the court.” He argued that if Jake was going to be a witness, it proved the prosecutor's office had a conflict, so the judge should immediately grant his motion for recusal.

Hempey also noted that Lucas had been flown in from the Big Island at Tim's expense, and two county workers — senior planning inspector Sheilah Miyake and former planning director Ian Costa — were waiting outside to testify. It was the second time they'd been called as witnesses in the case, and they had indicated they did not want to come back.

“You don't get to change horses in mid-stream,” Hempey said. “This was so foreseeable and avoidable. Let's just stop this right now and start over with a fair process.”

Jake contended his office had no conflict, and said “how we proceeded in this case is entirely proper.”

But the judge wasn't buying it. “I cannot fathom why you would not have anticipated a conflict,” she said.

“We did,” Jake said, which is why his office had sought the motion to quash Lucas' subpoena so he couldn't testify.

“Now you're changing your position,” the judge said, noting that originally, they asked her to bar Lucas ' testimony because it was work product. “Now you're saying it's because I knew what he was going to say and I didn't want you to hear it.”

And then there was the issue of the letter that Shay wrote to the County Council in January of this year. In it, she referenced “Bynum's paranoid belief” that the actions taken by her office “were calculated personal attacks against him.” Shay also claimed in the letter that Tim shouldn't be allowed to participate in discussions about funding a law clerk for her office “because he has a vested interest in ensuring that the OPA not operate at peak efficiency.”

Shay went on to maintain that the case against Tim had been investigated by the planning department and referred to her office for prosecution.

In calling for Shay's recusal, Hempey argued that her comments were prejudicial, jeopardizing his client's ability to receive a fair trial. Although the letter was stamped confidential, Hempey said, Shay had released it to the media and discussed it during the televised Council meeting, thus casting public aspersions on Tim's character. He also noted that her claim about the planning department's investigation was clearly untrue, and said he might need to call her to testify about “selective enforcement” at Tim's upcoming trial.

Jake tried to explain away the letter, but the judge was disturbed that it had been released.

“I think that's what I find truly amazing is your ability and your office's ability to compartmentalize,” she said. “What you consider to be private and confidential can be released, what you consider to be a conflict and not a conflict.”

After the judge recused the prosecutor's office, Jake objected to her decision, saying she had made it before the hearing was pau.

“Your position, your arguments, your comments on the record have convinced this court your office should not be prosecuting this case,” she responded. “We stopped in mid-hearing at your request because you felt you and your office were in conflict. Mr. Delaplane, you and your office truly need to to step back and really take a careful look at the positions, statements, you take that are so rife with apparent conflict. The court has very serious concerns about how this matter was handled.”

After the hearing, which had been attended by half-a-dozen attorneys from the prosecutor's office, Deputy County Attorney Maunakea Trask and former Councilman Kaipo Asing, among others, I asked Tim how he felt.

“I share her concerns about how this matter has been handled,” he said, his voice trembling. “This is very emotional for me. I take my integrity seriously, and to hear it disparaged publicly. This whole thing is unbelievable. It's just Alice in Wonderland.”