The state’s police fatality review board has finished reviewing its first case — the shooting death of a former state corrections officer by Honolulu police — but the results remain a secret while the board tries to figure out what the law actually allows it to tell the public.

“We’re stuck,” said Iwalani White, a former family court judge and prosecutor who heads the board, at a meeting Thursday.

The statute that created this board in 2017 leaves room for uncertainty about when and under what circumstances the board’s recommendations and accompanying materials should be disclosed to the public.

So the board is waiting for the state Attorney General’s office to weigh in before it releases — or doesn’t release — the information. It voted Thursday to appoint an attorney from that office to advise it.

Law Enforcement Officer Independent Review Board members Gary Yabuta, Katy Chen and right, Melissa Pavlicek.
Law Enforcement Officer Independent Review Board members, from left, Gary Yabuta, Katy Chen and Melissa Pavlicek were among the panel members voting to keep its finding secret until they can get legal advice from the state Attorney General’s office. Cory Lum/Civil Beat

The nine-member independent board was set up to provide more transparency when someone dies while in custody or during an officer-involved shooting by having another entity besides the police to review the incidents. It is also supposed to provide a recommendation to prosecutors on whether to prosecute.

The board took its first case, which involved a former corrections officer who was fatally shot by Honolulu police officers, in August 2018.

Much of the discussion at the Thursday meeting revolved around holes in the law setting up the board that would affect what kind of information could be disclosed, if at all.

Brian Black, executive director of the Civil Beat Law Center for the Public Interest, said that when prosecutors decline to pursue charges, there isn’t a criminal proceeding that would require adjudication.

The board should not wait to release its recommendation and related material in that case, he said. The need for transparency is most important when prosecutors decline to bring charges after a law enforcement-involved death, Black said.

“It is absurd that the board would wait for a nonexistent criminal proceeding to be adjudicated,” Black wrote in a letter to the board.

The statute specifically says the board should release its recommendation and any accompanying reports when the criminal prosecution or proceedings in a case has been “adjudicated,” but does not define the term as it applies to this board’s duties.

Board members debated whether that would include numerous stages of court appeals that could happen in a case and frequently called upon Black during the meeting to seek his opinion.

“We’re just going down a rabbit hole with all these possibilities and questions.” — Board member Katy Chen

The Attorney General’s office previously testified to the Legislature that releasing the board’s recommendation prematurely could interfere with and possibly jeopardize investigations.

“We’re just going down a rabbit hole with all these possibilities and questions,” said Katy Chen, former chair of the Honolulu Ethics Commission who’s now on the police review board.

Members agreed to wait until their new attorney, who has not been named yet, could provide counsel.

The board was scheduled to adopt the guidelines for reviewing officer-involved deaths, but also tabled that item to seek legal counsel.

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