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.”
i'll bet Shaylene is shoving Jake down a rabbit hole right now
Jake and Shay fumbled. This is a small island. I am also appalled at the potential abuse of power by Bynum.
This is excellent journalism Joan! Mahalo for your dedication to getting the details and information accurate.
Prosecutor's office has no business secretly recording victims or witnesses and goes to show you the manipulation tactics of Shay and Jake to abuse their power. Neither are deserving of a license to practice law and are a disgrace.
Is this a cae of small town petty politics gone wild or prosecutorial abuse? Or is it about the clear need to protect the citizens of Kauai from the scourge of rice cooker use in family rooms.
Tim's mistake was not in having the rice cooker and creating an extra room for family, but he had the nerve to NOT RENT IT AS A VACATION RENTAL> Shame on you Tim,having family live with you, you could have got one of those permits they gave out like candy. No need for compliance, no need for inspections .
Thanks for reporting Joan. All jokes aside, even sniveling dweebs like Tim shouldn't be treated this way. Are we gonna have to give him a fat check for this? Maybe he will make so much money from the people of this county, he won't have to run again!
Things could get really comical and/or disfunctional, if Shay runs for council instead of prosecutor.
If they were really worried about the abuse of zoning they would inspect the illegal dwelling units (tents and yurts"),outdoor composting toilets, miles of extension cords and open air kitchens littering the Moloaa landscape.
There's a pattern of lawlessness emerging before the public. The Rego case,where Shay was going after her ex boyfriend, who allegedly stole cosmetics at her instruction; the Humane Society case that has been documented on this blog in all its scary detail; and now this. What else is out there? Mel, stop defending this criminal mastermind and call for an investigation. You would if these allegations involved another department.
Pulitzer Prize for her posts on the wicked witch of the west! Shay should quit and dry out.
"Mel, stop defending this criminal mastermind and call for an investigation. You would if these allegations involved another department."
Mr. law and order has selective attention. Kualii too.
Shay can not work with people - she should not be in any public office.
Jake is lucky that the judge stopped the hearing. Imagine what Sheila or Ian might have said about Shay's involvement in this case:
Dan: Ms. Miyake, you're a planning inspector?
Dan: Have you discussed this matter with the prosecutor?
Dan: Tell us about the discussions.
Sheila: Well, we told her to forget about it, that we normally don't refer these Mickey Mouse violations for prosecution, especially when he took out the rice cooker.
Dan: What was Shay's reaction?
Sheila: She flipped out and accused me of sleeping with Tim. Gross! She said that if we didn't send a violation notice, she'd prosecute me for imitating an inspector. As if, just because I wear high heels when I'm peeking in people's windows doesn't mean that I'm not a real inspector.
Dan: What did you say to her?
Sheila: What can you say to her? She can't even control herself on TV. You can't imagine what she's like when no one's around. I gave her a drink to calm her down but it was like throwing gas on a fire. She told me that she's gonna get that whiny worm no matter what. She said that she was going to put her most loyal, unquestioning deputy on the case and show Bynum the power of the dark side of the force. I swear, her breathing started to sound like Darth Vader.
Dan: Thank you. No further questions, your honor.
Jake: I want a continuance. Shay has to testify and prove that her breathing doesn't sound anything like Darth Vader.
6 prosecutors, two county attorneys and a whole court staff being paid by us taxpayers / voters.....over this? And now this embarrassment. Please resign.
WE WILL ALL PAY FOR SHAY
The taxpayers may end up paying for Shay's misconduct.
Please people, Justin Kollar for Kauai Prosecutor!
SAVE OUR COUNTY FUNDS - VOTE FOR JUSTIN!
Tim is a manipulator. A big whiney baby.
I have all the respect in the world for Dan Hempey and maybe itʻs the unfortunate circumstance that Bynum brought his case to Dan and thus causing this wicked wedge in the community.
I get that Tim bugs the shit out of her and he is a big whiny manipulator but her conduct as the Prosecuting Attorney, the County's chief judicial law enforcement officer, shows a serious lack of ethics and intellect. It is shocking. Her slogan should be "Live pilau, be pilau".
ABA Formal Opinion 337 generally stated that with certain exceptions spelled out in the opinion, no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation. The basis for this opinion was that Canon 9 of the Code of Professional Responsibility stated that a lawyer should avoid even the appearance of professional impropriety. The opinion also relied upon DR 1-102(A)(4) of the Code of Professional Responsibility which stated that “a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The opinion went on to say: Canons 1, 4, 7 and 9, and Ethical Consideration all clearly express axiomatic norms for attorney conduct. Each in the view of the Committee supports the conclusion that lawyers should not make recordings without consent of all parties. Ethical Considerations EC 1-5, 4-4, 4-5, 7-1, 9-2 and 9-6 all state in various ways the conduct of which lawyers should aspire. None would condone such conduct.
ABA Informal Opinion 101 generally stated that prosecutors shouldn't make one of their least experienced deputies second in command or assign this newbie to a highly sensitive case when he doesn't know the rules of court or conduct. Please don't tell me he's prosecuting Hilario.
It gets better. Under the Kauai County Charter, the Prosecuting Attorney must have been a licensed attorney in Hawaii for at least three years. Delaplane has not been licensed in Hawaii for three years which means he cannot serve as Prosecutor if something happens to Iseri-Carvalho. So why did she make him the First Deputy (who is supposed to serve if she cannot)?
Anonymous April 6, 2012 10:19 AM said...
"6 prosecutors, two county attorneys and a whole court staff being paid by us taxpayers / voters.....over this? And now this embarrassment. Please resign."
Agreed. Shaylene, Jake, and Maunakea or some combination thereof should all resign. Wasting the County's money over a witch hunt.
I say look a little closer into Bynumʻs dark closet.
His hands are dirty on this.
What did he do?
He Allowed a rice cooker to be used outside the one kitchen in his home. I know personally that I feel better knowing this heinous crime is being prosecuted.
Whew! I thought it was something petty.
Kauai Corruption! Who the eff is in charge of this pilau show? Oh da bbbb and her trolls. BoZo-Get da rope!!!
I think Mel is hot for Shay.
They sure worked well together against the dog/bike/human path, but did not succeed in their dog fight with the tax payers that wanted this path.
Jake contended his office had no conflict, and said “how we proceeded in this case is entirely proper.”
Catch Jake's Jedi mind trick?
But the Judge didn't fall for it...
Guess this means Mr Bynum can question OPA all he wants now at Council meetings. Suggestions?
Here are a few: why are you at the Council meetings all day instead of working in your office? if you fire dishonest attorneys, how come Jake is still your first deputy? Why did you name him the first deputy when he's one of the least experienced attorneys in your office? Who is handling the Hilario case?
Post a Comment