When Honolulu Prosecuting Attorney Keith Kaneshiro issued a statement saying his office wouldn’t respond to a news report that he’s the target of a federal grand jury investigation, he did not merely decline to comment.

Honolulu’s top criminal lawyer took it a step further and cited rules governing federal grand jury proceedings, implying that the rules prohibited Kaneshiro from commenting.

But the Federal Rules of Criminal Procedure, which Kaneshiro cited, contain no such prohibition, three experts in criminal procedure said.

Prosecutor Keith Kaneshiro leaves District Court.
Prosecutor Keith Kaneshiro has declined to say whether he’s a target of a federal investigation. Cory Lum/Civil Beat/2017

Kaneshiro issued the statement Tuesday after being publicly challenged to respond to published news reports that he had received a target letter from the U.S. Justice Department. Kaneshiro is caught up in a years-long federal investigation into public corruption and abuse of power that has already resulted in the indictment of former Honolulu police chief Louis Kealoha, his wife Katherine, who is a former deputy prosecutor, and four Honolulu police officers.

“Federal Rules of Criminal Procedure mandate that grand jury proceedings are secret,” read the document. “It is a violation of law for an attorney of the government, a grand juror, or others to disclose information about grand jury investigations.”

The statement added, “We do not comment on investigations any grand jury may or may not be conducting.”

In fact, there’s no rule that would prevent any target or witness from commenting, said Virginia Hench, a retired professor of criminal law at the University of Hawaii’s William S. Richardson School of Law.

Hench noted that Kaneshiro doesn’t have to comment, and she said she would probably advise him not to comment if he is the target of a federal investigation. But she said there’s nothing in the Federal Rules of Criminal Procedure that would prohibit him from talking about the matter.

Still, Hench added, “It sounds better than saying, ‘I don’t want to talk.’”

Although grand jury proceedings are not open to the public like trials are, the general rule governing grand jury proceedings is that “no obligation of secrecy may be imposed on any person.”

However, the rule states exceptions to this general rule, listing several people who can’t talk about the grand jury proceeding. These include the grand jurors themselves, court personnel such as court reporters and “an attorney for the government.”

The question is, would Kaneshiro be considered “an attorney for the government” when he’s not acting as a prosecutor in the grand jury proceeding?

Kevin Cole, a professor of criminal law at the University of San Diego School of Law, said the rule doesn’t prevent Kaneshiro from talking about the grand jury proceeding if Kaneshiro is a target of the investigation.

“It sounds as if he’s misinterpreting the rule, unless he’s investigating himself, which would violate other rules,” Cole said.

Retired HPD Chief Louis Kealoha Katherine Kealoha leave District Court.
Katherine Kealoha, a former high-ranking deputy prosecuting attorney for Honolulu, has been indicted on several counts of conspiracy and bank fraud. Cory Lum/Civil Beat

Jim Felman, a Florida attorney who is a co-author of a two-volume treatise on grand jury law, agreed the rules do not prevent Kaneshiro from discussing the grand jury proceeding.

“He is not required to say what happened in the grand jury, but he is certainly free to do so if he would like to,” Felman said.

The prosecutor’s office did not respond to requests for comment for this story.

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