When someone in Hawaii dies while in police custody or is killed by an officer, little information is officially released other than the date, time and location.

The name of the deceased eventually becomes public, but not the names of the officers involved unless a lawsuit is filed. Sometimes there’s a departmental account of the circumstances leading up to the death, usually spelled out in a press release.

There’s no real explanation as to why an officer’s use of force was justified. It’s not uncommon for police officials to simply tell the media that the use of force was necessary given the circumstances, sometimes even before the department conducts an internal review.

County prosecutors almost always decline to press charges against officers. Yet these prosecutors, too, rarely provide details or documentation to the public that back up those decisions.

Hawaii lawmakers are now considering a bill to create an independent review board in the Attorney General’s Office to oversee state and county investigations into all police killings and in-custody deaths to ensure the inquiries are comprehensive and fair.

R Brian Black Executive Director Civil Beat Law Center for the Public Interest testifies during charter commission meeting at Honolulu Hale.
Civil Beat Law Center for the Public Interest Executive Director Brian Black is trying to convince lawmakers that the recommendations of a police killing oversight board should be public as soon as possible. Cory Lum/Civil Beat/2016

The seven-member board would be made up of former prosecutors from each of Hawaii’s four counties, a deputy attorney general, a retired judge and a former police chief, all of whom must have at least five years of experience handling criminal cases involving death.

They would review each agency’s criminal investigation of its officers to determine if charges should be pursued or if more investigation is needed. Although the board’s recommendations would be forwarded to county prosecutors, they would not be required to follow the board’s wishes.

But while many look to Senate Bill 2196 as a positive step in the effort to increase police accountability in the islands, a confidentiality clause in the measure effectively neuters the intent of the legislation by keeping secret the board’s recommendations until all criminal, civil and other court proceedings are completed.

“It’s a fundamental question of what is the point of this board. If the whole point is to provide more transparency and accountability you’re actually not doing that.” — Brian Black, Civil Beat Law Center for the Public Interest

That means it could take years before the public learns whether the independent review board believed a police killing was justified.

“It’s a fundamental question of what is the point of this board,” said Brian Black, executive director of the Civil Beat Law Center for the Public Interest. “If the whole point is to provide more transparency and accountability you’re actually not doing that.”

He said the public interest is highest shortly after someone is killed and when a prosecutor is weighing the decision on whether to pursue charges. The board’s recommendation can provide legitimacy to whatever decision is made, or raise questions about the veracity of the criminal investigation.

But Black says the board’s recommendation becomes irrelevant if the public is forced to wait until after a criminal case is adjudicated or a legal settlement reached. By that time, he said, a judge or jury has already decided on the merits of a case so it doesn’t really matter what the board’s opinion was beforehand.

After Deaths, The Silent Treatment

When Honolulu police officers killed Aaron Torres, in 2012 few details were released about the circumstances surrounding his death. Prosecutors declined to charge any of the officers involved, but did not explain the decision publicly.

The city settled a lawsuit with Torres’ family in 2014 for $1.4 million, but again officials didn’t divulge much information about the case outside of what had been filed in court.

It took a public request from Civil Beat to get access to the Honolulu Police Department’s criminal and administrative investigations into Torres’ death. But those reports raised more questions than provided answers, in large part because many details had been redacted.

“Once this type of information is made public, it will be difficult to prevent its consideration by the public.” — Attorney General Spokesman Joshua Wisch

Experts who reviewed the case had serious concerns. In particular, they criticized officers for placing Torres face down in the dirt while he was wearing handcuffs and leg shackles, a practice that the U.S. Department of Justice warns officers to avoid.

Sheldon Haleck died after an encounter with Honolulu police in March 2015. Officers used a Taser to subdue Haleck while he was high on methamphetamine and walking through the middle of King Street in downtown Honolulu near Iolani Palace.

Haleck’s family has sued the Honolulu Police Department, and has alleged that city officials have attempted to cover-up the circumstances surrounding Haleck’s death. The family is seeking $6 million in damages.

Police officials, however, have remained quiet, and the Honolulu Prosecuting Attorney’s Office has yet to make a determination on whether to pursue charges. Until then, the public will have no idea whether Haleck’s death is considered justified in the eyes of law enforcement.

The Hawaii Attorney General’s Office has been the main agency pushing for confidentiality in SB 2196. Other law enforcement agencies, and particularly those from Maui County, have asked the that bill be scrapped altogether.

Maui County Police Chief Tivoli Faaumu said a review board could undermine a prosecutor’s decision, which would lead to “destabilization.” He added that such a scenario could also lead to “undue stress” for officers, since they would have to deal with yet another review of their actions outside of the police department.

The Attorney General’s Office is concerned that the board’s recommendations, if contrary to a prosecutor’s decision, could be used by defense attorneys to undermine a criminal prosecution.

“A recommendation to prosecute could be characterized as undue political pressure or influence that caused the prosecution to ‘go after’ an ‘innocent’ law enforcement officer,” Attorney General Doug Chin and Deputy Attorney General Landon Murata wrote in their testimony.

“A recommendation to decline prosecution or to consider further investigation could be used to attack the investigation or prosecution as being unfair, incomplete, or otherwise flawed or improper.”

Black said that such blanket secrecy could be avoided if lawmakers simply added a provision in the law that says recommendations cannot be used as evidence in court. This would be similar to other court rules that prevent a person’s criminal past from being revealed to jurors.

But Attorney General spokesman Joshua Wisch says the situation isn’t that simple, especially given the fact that any recommendation made by the oversight board will likely be reported by the media.

“Once this type of information is made public, it will be difficult to prevent its consideration by the public,” Wisch wrote in an email. “As some of the members of the public may be part of a future jury pool, this type of information could impact the jury pool and thereby impact the fairness of trial. Granting public access to this type of information, in our view, may affect litigation.”

But Black says the courts deal with this issue all the time during high-profile trials, and can account for it through the jury selection process.

“We have a large community,” Black said. “The idea that we would not be able to get qualified jurors in Honolulu because we’re releasing this board’s recommendations is a stretch.”

Verdict Still Out On Accountability

The confidentiality clause isn’t the only shortcoming in SB 2196, according Kenneth Lawson, a University of Hawaii criminal law faculty member who is also the co-director of the Hawaii Innocence Project. He says the makeup of the board automatically undermines its credibility since it’s stacked with law enforcement officials.

The original draft of SB 2196 stated that the board should include other members from the community, including two people without backgrounds in law enforcement, and a professor or researcher affiliated with a higher education institution, such as UH.

“If you look at the other review boards that have been credible and that have been lauded by both law enforcement and citizens, it’s one that represents a cross-section of the community,” Lawson said, adding the board makeup proposed in SB2196 “doesn’t pass the smell test.”

“I’m hoping that if we can make the bills stronger or add some more teeth that we will try to do that. The fact that we got this far is significant.” — Sen. Will Espero

“To me it’s not an independent review board,” Lawson said. “It’s just window-dressing to say that we’re trying to do something.”

Hawaii lawmakers have been searching for ways to improve police accountability during much of the 2016 legislative session to respond to high-profile scandals at the Honolulu Police Department and to join the national debate about the unchecked authority of law enforcement.

But while a handful of proposals have gained traction, including one to outfit police officers and their vehicles with video cameras, there’s concern that the bills don’t go far enough.

For example, Senate Bill 2755 would create a board to set statewide standards and minimum training requirements for law enforcement officers working in Hawaii. Currently, Hawaii is the only state without such a board.

But the bill leaves it up to government agencies to voluntarily implement the employment standards for officers. It also does nothing to address certification and licensing of law enforcement officials, which many experts say is necessary to provide better oversight of police and ensure bad cops don’t bounce between jurisdictions.

A recent case involving Ethan Ferguson, a Department of Land and Natural Resources officer accused of sexual assault, highlights how a certification program could have prevented him from being issued a badge and gun.

Ferguson had previously been fired by the Honolulu Police Department for misconduct. If Hawaii had a licensing program at the time, Ferguson likely would have had his certification revoked and he would not have been eligible to be hired by DLNR.

Forty-four states already have licensing and certification programs in place for police officers.

Vice Chair / Sen Will Espero Chair and right, Clarence Nishihara, Public Safety, Intergovernmental Affairs and Military Affairs during committee hearing for bills.
State. Sen. Will Espero, left, is hoping to work behind the scenes to toughen police oversight in Hawaii. 

State Sen. Will Espero introduced both SB 2196 and SB 2755 as part of his attempt to institute sweeping police reform in Hawaii. He says the fact that the bills are still alive is a positive sign, and he hopes that more can be done in conference committee to toughen the proposed laws.

Conference committee is where legislators debate behind closed doors about the various proposals that are still alive in the Legislature, and can make amendments to bills before a final vote is cast. The bills can also meet a swift death if agreements can’t be reached.

Espero, who is Senate vice president, says he plans to meet with his colleagues in an attempt to promote more openness and transparency in the various police reform measures, as well as broach the subject of certification.

But he also admits that it can take time to convince other lawmakers, and that some issues might have to be addressed in future legislative sessions.

“As a package of measures, we’ve got some bills that could make a difference,” Espero said. “I’m hoping that if we can make the bills stronger or add some more teeth that we will try to do that. The fact that we got this far is significant.”

Conference committee hearings kick off this week.

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