Defense attorneys for three officers charged in the fatal shooting of Iremamber Sykap are putting added pressure on the Honolulu Prosecutor’s Office in the run-up to a high profile hearing set to begin Tuesday.
Prosecutors will try to convince a judge that probable cause exists to formally bring charges against Geoffrey Thom, who is accused of second degree murder for shooting Sykap eight times in the back, as well as Zachary Ah Nee and Christopher Fredeluces, who are accused of second degree attempted murder for shooting at Sykap and his brother.
While probable cause is an easier threshold to meet than guilt beyond a reasonable doubt, as a jury would need to find, the case is becoming complicated for prosecutors in other ways.
On Friday, Thom’s attorney, Richard Sing, asked the court to disqualify the lead prosecutor in the case, Christopher Van Marter. The officers’ defense teams have already asked the court to dismiss all felony charges. And the team has also subpoenaed a dozen Honolulu Police Department employees to testify on behalf of the defense, a sign the attorneys plan to counter the prosecutors’ case.
The motions to dismiss charges and disqualify Van Marter along with the preliminary hearing are expected be taken up for the first time on Tuesday.
Van Marter reviewed police evidence and signed the complaining documents accusing the three officers of murder and attempted murder. Sing argues that makes Van Marter both the primary witness and the government’s lawyer in the case.
“DPA Van Marter’s appearance as counsel and as a witness creates an irreconcilable conflict and he must be disqualified as representing the State of Hawaii in this matter,” Sing wrote in court filings.
The two other officers charged in the case, Zackary Ah Nee and Christopher Fredeluces, joined in Sing’s motion to disqualify Van Marter.
Matt Dvonch, special counsel to the prosecutor’s office, said the county will respond to Sing’s motion in court.
In developing his case, Van Marter says in court filings that he reviewed 1,300 pages of police reports, 70 body-worn camera videos, 40 videos from cameras in the area surrounding the shooting scene on Kalakaua Avenue, ambulance reports, Sykap’s autopsy, evidence photos and the use of force history of each of the officers.
Sing, the defense attorney, says in court documents that the police detective who investigates a crime is also the person who typically signs the complaint documents that lay out criminal charges.
Both the state and the defense would have the opportunity to cross examine the detective at a hearing. Sing says that in this case, Van Marter can’t be both the witness and the government’s lawyer.
Sing says there wouldn’t be any hardship for the state in this case, because “there are ample other deputy prosecuting attorneys or deputy attorneys general available to take the case.”
The prosecutor’s office has declined to publicly share the evidence it presented to a grand jury in June before the jury declined to indict the officers.
Thomas Otake, the attorney for Ah Nee, has argued that prosecutors can’t proceed with the case through the courts since the grand jury already turned them down.
Van Marter refuted that argument on Thursday, saying that the defense for the officer amounted to “no Perry Mason moment.” Van Marter called the defense’s argument flawed. The prosecutor reasoned that the office has the legal right to pursue charges through the courts and that doing so is not unprecedented.
Otake says he’s missing the point.
“Not unprecedented then,” Otake wrote in a reply brief Friday. “Just wrong.”
In Otake’s view, prosecutors are misreading a section of the state constitution they believe gives them the authority to move forward without a grand jury indictment. When taken together with other state laws, Otake says that the government doesn’t have that power.
“The State repeatedly asserts that it has such power, replete with shouting its view with double emphasizes and exclamation points,” Otake writes. “Being loud does not make the state right.”
Crystal Glendon, the attorney for Fredeluces, also subpoenaed three more HPD employees on Friday in addition to the nine employees already subpoenaed.
The new subpoenas went to Ofc. Ezrah Carvalho and police Lts. Denice Kashiwai and Brandon Nakasone.
The preliminary hearing scheduled for Tuesday is an early step in the judicial process. If the court does find probable cause, a jury trial for the officers must be scheduled within a reasonable time.
If tried and found guilty, all three officers face sentences of life in prison with the possibility of parole.
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