For years, criminal defense attorney Richard Holcomb has struggled to get the records on cops who lie, cut corners or find themselves crosswise with the law.
Holcomb mostly handles DUI cases, and he regularly asks for officers’ disciplinary files to see if there are any red flags, such as a predilection for falsifying reports or use of excessive force, that might help his client.
Because Honolulu’s public records law often bars access to such records, Holcomb typically has to rely on a judicial order to gain access to these documents.
It’s not an outlandish request, either. Federal law requires prosecutors to turn over any evidence that could be used to refute their claims, including misconduct by police officers, to ensure a defendant receives a fair trial.
But now Holcomb says he’s got evidence that indicates the Honolulu Department of the Prosecuting Attorney routinely hides information on bad cops, and that city officials have implemented policies that result in police records being prematurely destroyed.
Last week, Holcomb took his case to the Hawaii Supreme Court in an effort to fight what he’s described in court records as a “prosecutorial regime (that) is actively concealing impeachment information regarding law enforcement officers.”
He said this often leaves him and other attorneys at the mercy of the media and courthouse gossip to find out if an officer has been caught lying or breaking the law.
Holcomb is now asking the high court to review whether prosecutors are complying with federal law and to impose changes that will make police misconduct records more accessible, at least to defense attorneys.
“In my view, the danger that someone will be wrongfully convicted or a violent felon will be set free is imminent because of these prosecutorial practices in Honolulu,” Holcomb said. “This is a real world consequence of government secrecy.”
Holcomb’s argument centers on the 1963 U.S. Supreme Court ruling in Brady v. Maryland that determined prosecutors must turn over all evidence that might cast doubt on a defendant’s guilt.
This evidence — described as Brady material — can include everything from witness statements that contradict the prosecution’s proffered narrative of criminal events to documents that could undermine a witness’ credibility in the courtroom, such as proof that an officer had previously lied under oath or falsified reports.
Often, defense attorneys will use this law to gain access to a police officer’s personnel file so they can find out if the individual has a history of misconduct that might be germane to a particular case.
For example, if a police officer has a history of being untruthful during an investigation a defense attorney might use that evidence to argue that the officer’s testimony in a case should be disregarded.
There’s no shortage of controversy surrounding requests for Brady evidence, particularly when it involves police personnel files. Some police agencies, as well as police unions, argue that the rule can be used to settle scores and ruin officers’ careers.
“In my view, the danger that someone will be wrongfully convicted or a violent felon will be set free is imminent because of these prosecutorial practices in Honolulu.” — Richard Holcomb
Many jurisdictions across the country maintain a “Brady list” that identifies officers who might be problematic in the courtroom because of their prior bad acts. Honolulu is not one of them.
But Holcomb argues that prosecutors have not been complying with the Brady law, leaving it up to the Honolulu Police Department and Honolulu Police Commission to provide the records.
He says HPD and the commission routinely refuse to disclose information that he believes is required under Brady rules.
He also says that by shifting the burden to police officers and “non-lawyer bureaucrats,” Honolulu prosecutors are “willfully leaving the foxes to guard the henhouse.”
Holcomb is particularly concerned about the destruction of police misconduct records that could prove useful to a defendant.
Under current city policies, many of these records are purged after a short period of time. The risk is that these records could be destroyed before a criminal trial has been fully adjudicated, which could be years if there’s an appeal.
“There should be no expiration date on impeachment materials,” he said
Honolulu Prosecuting Attorney Keith Kaneshiro, who is running for re-election in this year, said he couldn’t comment on the specifics of Holcomb’s petition.
“Our practice is we respond and we present as much information as we’re able to, and some information does not come to us,” Kaneshiro said. “If we don’t have it we can’t respond to it. We don’t go out and purposefully try to withhold information from defense attorneys and defendants.”
Holcomb’s Supreme Court petition stems from an ongoing driving under the influence case in which he requested documents about HPD officers who were involved in his client’s arrest. But the petition focuses more on the sheer volume of misconduct occurring within the ranks of the department and the prosecutor’s office failure to acknowledge it.
“I honestly would hope that they’re not purposefully trying to hide stuff from us because that would be egregious.” — Jonathan Burge, Honolulu defense attorney
Holcomb notes that current and former officers, including Roddy Tsunezumi, Alan Ahn and Richard Staszyn, all of whom have faced criminal charges over the past several years, were also named as witnesses in several cases being handled by him or others in the defense bar.
Holcomb questioned why in these cases prosecutors continually failed to notify him or his colleagues of ongoing investigations of those officers, which included allegations ranging from threatening a woman with a brick and dealing drugs to shaking down local bar owners and selling stolen cars.
Details about these officers, he said, would usually trickle out in the press or in the chatter among attorneys working at the courthouse.
Holcomb isn’t alone in his concerns. Several other lawyers with concerns about prosecutors refusing to turn over Brady material have offered supporting statements that are included in the petition.
Jonathan Burge was representing a client who had been arrested by HPD officer Ryan Yamaato in March 2015 for driving under the influence of an intoxicant.
Yamaato had been charged in 2012 with tampering with a government record stemming from allegations he falsified documents in a drunken driving case. Yamaato pleaded no contest and struck a deal that resulted in the case being dismissed after six months.
Burge had learned from a fellow defense attorney that Yamaato had been investigated and charged for falsifying a police report. The problem was Burge couldn’t find any record of it because the documents had either been sealed or purged.
Prosecutors also didn’t go out of their way to provide Burge with the information, and in fact, it took a judicial order to get them to admit in a one-page letter that they had prosecuted Yamaato three years earlier.
The judge in the case ordered the prosecutors to turn over more documents about the case, including transcripts from the court proceedings. Burge said the case was dismissed before any of the records were handed over.
“I honestly would hope that they’re not purposefully trying to hide stuff from us because that would be egregious,” Burge said. “I think it’s more about disorganization. One hand doesn’t know what the other is doing over there when it comes to this Brady stuff. They need to get better so they can comply with their duties.”
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