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A Hawaii Circuit Court judge dismissed a felony theft case Monday against a Honolulu architect after voicing grave concerns about the circumstances that led to the charges.
Judge Karen Nakasone described the case as “highly unusual,” “irregular” and a “threat to the judicial process.”
She also said it “illustrates the danger” of allowing prosecutors to file charges via information, meaning it’s not vetted by a grand jury or a judge during a preliminary hearing.
The key players in the case are Mitsunaga & Associates, an architectural and engineering firm with a long history in Hawaii politics, and Laurel Mau, a former employee who had filed a sex and age discrimination lawsuit against the company in 2012.
Honolulu Prosecuting Attorney Keith Kaneshiro is also a central figure, if only because his top political donors include several members of Mitsunaga & Associates.
Kaneshiro told Civil Beat on Monday that Nakasone’s ruling was “completely wrong” and that he plans to file an appeal.
His office charged Mau with four counts of second-degree felony theft in December 2014 after representatives from Mitsunaga & Associates told city prosecutors she stole money from the firm by performing side jobs on company time.
The charges also included allegations Mau told one of her clients that she was working on behalf of Mitsunaga & Associates when she was not.
If convicted, Mau could have faced up to five years in prison for each of the four counts.
“Ordinarily, law enforcement agencies, such as (the Honolulu Police Department) could have and should have conducted the investigation, but that was not done in this case.” — Judge Karen Nakasone
But Judge Nakasone said representatives of Mitsunaga & Associates appear to have “orchestrated the vast majority of the investigation” that was relied upon by prosecutors.
She said the affidavits and witness statements used to support the charges against Mau looked to have been prepared by Mitsunaga & Associates’ own attorney, Sherri Tanaka.
Tanaka represented Mitsunaga & Associates in Mau’s lawsuit against the company. She was also part of a counter-claim in which the firm accused Mau of a “breach of duty of loyalty.”
Mau’s claims of discrimination were denied in July 2014, and the company was awarded $1 in damages. Its request for more than $73,000 in attorneys fees and other costs was denied in October 2014.
Nakasone said there appeared to be little vetting in the criminal case by either the city’s investigator, Vernon Branco, or deputy prosecuting attorney Jacob Delaplane, who signed off on the charging documents.
More concerning to Nakasone was the fact that the prosecuting attorney’s office brought this case on its own, without any outside help from law enforcement.
There was no grand jury or preliminary hearing in front of a judge to determine probable cause.
“Other than the complainant Mitsunaga & Associates’ own in-house investigation, no independent, outside investigatory body appears to have been consulted in this case,” Nakasone said.
“Ordinarily, law enforcement agencies, such as (the Honolulu Police Department) could have and should have conducted the investigation, but that was not done in this case,” she said. “In fact, no law enforcement agencies, such as HPD or the Department of the Attorney General or any other state or federal law enforcement, was involved.”
Nakasone’s ruling stemmed from a motion filed by Mau’s attorneys, Howard Luke and Richard Sing, who had flagged a number of peculiarities in the charging documents.
That motion described how there was no independent review of the case outside of the prosecuting attorney’s office.
It also indicated that there was no evidence that Branco interviewed any of the pertinent witnesses who were involved in the case.
Instead, they said the prosecuting attorney’s office relied heavily on Tanaka and the information she provided to help “explain the case” for the office.
Mau’s attorneys also highlighted the “extraordinarily close” and “highly suspect relationship” between Mitsunaga & Associates and the prosecuting attorney’s office, particularly as it relates to campaign donations to Kaneshiro.
Mitsunaga & Associates is a major campaign donor in Hawaii politics, and has occasionally found itself the subject of speculation about pay-to-play politics.
Hawaii campaign spending data shows that from 2012 to 2016, representatives from the company donated nearly $40,000 to Kaneshiro’s campaign, which makes up about 10 percent of his total contributions during that time.
Nakasone’s ruling did not address Kaneshiro’s political ties to Mitsunaga & Associates.
She did, however, note that the felony information and thousands of pages of exhibits that were used to support the charges, including portions of transcripts from legal proceedings and depositions, were “highly selective” and took on the tone of a “third lawsuit.”
Sing agreed with the judge, although he didn’t have to spend much time arguing his case since she made it clear from the beginning of Monday’s proceeding how she planned to rule.
“It looks different from any discovery I’ve ever reviewed in 20 years,” Sing said. “It’s very unusual, very out of the ordinary and very selective.”
“Of course they’re going to bring up whatever they feel is necessary to tarnish anybody’s name, but that doesn’t make it true in any fashion.” — Sherri Tanaka, attorney for Mitsunaga & Associates
Deputy Prosecuting Attorney Chasid Sapolu, who was arguing the case on behalf of Kaneshiro’s office, admitted in court that the way the case was handled was not the norm.
He told Nakasone that the Police Department is the agency that brings “the bulk of the investigations” to the court via the prosecuting attorney’s office.
But Sapolu also defended his office’s right to file charges via felony information. He noted that even though there was no grand jury proceeding or preliminary hearing, a district court judge still had to sign off on Mau’s arrest warrant.
“It may look different,” Sapolu said. “But that doesn’t mean it was wrong.”
Kaneshiro defended his office’s handling of the case, saying that there was no political favoritism. He also stuck up for his office’s right to file charges without first getting approval from a grand jury or a judge during a preliminary hearing.
“The case was made because there is evidence of criminal conduct and it was evaluated on the basis of criminal conduct,” Kaneshiro said. “We don’t look at who makes a complaint. We’ve handled cases where complainants, some of them, were criminals.
“I don’t look at lists of who donated to my campaign or who contributed to my campaign to decide whether to file a charge,” he said. “It’s based on evidence.”
Tanaka similarly denied any wrongdoing on behalf of herself and Mitsunaga & Associates. She said that whatever course of action the prosecuting attorney’s office pursued against Mau was the result of the agency’s own decision-making.
Tanaka called Nakasone’s statements unfounded, and said that many of the allegations put forth by Mitsunaga & Associates were based on Mau’s own admissions in court and in depositions.
She added that there’s nothing to the allegations that the case was brought as a political favor.
“Of course they’re going to bring up whatever they feel is necessary to tarnish anybody’s name, but that doesn’t make it true in any fashion,” Tanaka said. “We really didn’t have any involvement whatsoever. Both opposing counsel and the judge’s statements and speculations are false.”
Read the motion to dismiss here:
Read the prosecutor’s response here: