Jonathan Burge, a Honolulu defense attorney, was representing a drunken driving defendant in 2019 when prosecutors told him they could find no information that would undermine the credibility of the police officer who made the arrest.

The Police Files BadgeCriminal defendants have a constitutional right to know whether an officer testifying against them has credibility issues. It’s called Brady information, after the 1963 Supreme Court case that, along with ensuing decisions, established the obligation.

Despite the prosecutor’s assurance about Officer Charles Rezentes, Burge had heard otherwise from another attorney.

“A lot of the defense bar learns through each other,” said Burge, who is also a former police officer. “When we get an officer, we’ll email each other: Do you have any Brady material on this guy?” 

Under oath, Rezentes admitted he had been investigated “two or three times” for issues regarding truthfulness and report writing and was even fired once before being reinstated, according to a court transcript.  

The judge excluded Rezentes as a witness and the case was dismissed.

“That information eventually won the case for my client,” Burge said. 

The incident provides a glimpse into the murky world of Brady information, which can sway the fate of criminal defendants. 

Attorneys like Burge say they are routinely unable to get evidence of Honolulu police witness dishonesty that they believe the law requires.

There are 29 current and former Honolulu police officers with credibility issues on a prosecutor’s office list. Anthony Quintano/Civil Beat

HPD says that, when asked by the Prosecuting Attorney’s Office for evidence of officer misconduct, it provides “final, sustained charges relating to truth or veracity.” The prosecutor’s office is obligated to pass along this information to defense attorneys.

But would the officer in Burge’s case have met HPD’s criteria, considering the investigations might not have been “sustained” or “final”? Are those criteria broad enough to capture all cases of witness dishonesty that might sway a jury?

In addition, defense attorneys say that they often don’t learn about cases in which HPD did sustain a complaint and issue final discipline. 

It’s unclear where such a breakdown might occur. Neither HPD nor the prosecutor’s office would agree to an interview about the process.

Civil Beat’s own review of public police disciplinary cases found clear cases of officer dishonesty that did not lead to inclusion on the “Brady list” maintained by Prosecuting Attorney Steve Alm. 

Prosecutor Steven Alm at press conference outlining his first 100 days in office. January 12, 2021
Prosecutor Steve Alm acknowledges that his list of officers with histories of dishonesty is incomplete. Cory Lum/Civil Beat

Most of the 29 officers on Alm’s list have been the targets of criminal prosecution, as opposed to internal sanctions by HPD. In a prepared statement, Alm acknowledged the shortcomings of the list after Civil Beat asked why numerous officers disciplined for dishonesty are not represented.  

“We are currently looking at other sources of information regarding credibility issues of HPD officers to make the Brady list more complete,” he said. “As we move ahead, we will be sharing that updated information with the media.”  

Further complicating matters, despite its rulings that defendants have a right to Brady information, the U.S. Supreme Court has never spelled out exactly what steps prosecutors and police departments must take to assure that defendants are informed.

There is no explicit legal requirement, for instance, to include administrative findings of dishonesty in Brady materials, though many experts believe it’s implied. There’s not even a requirement that prosecutors maintain a Brady list at all. 

In Honolulu, “You have to request it and then you have to fight for it,” said William Harrison, a longtime criminal defense lawyer and advisor to the Hawaii Innocence Project. “They make us jump through a bunch of hoops for us to get this information when it’s their obligation to turn it over to us.”

For years, the Honolulu prosecutor’s office did not maintain a formal Brady list, according to former prosecutors. They might get information about an officer on an ad hoc basis — but the Honolulu Police Department did not permit prosecutors to view the department’s files, which would allow them to make their own judgments and pass them along to defense attorneys. 

And after as little as two and a half years, HPD can destroy officer disciplinary files altogether, leaving nothing but a blue index card with information so vague that defense attorneys say they have a hard time using it. 

Honolulu Police Officer Artie Kendall was disciplined in 2000 for misconduct related to truthfulness. He is not on the Honolulu prosecutor’s Brady list. If defense attorneys ask about his record, this blue card is all they get. Honolulu Police Department

Documenting Dishonesty

Brady disclosures refer to any evidence that, according to the U.S. Supreme Court, is favorable to the accused and is material to that person’s guilt – meaning there is a reasonable probability that if the jury learned the information, the result at trial might be different, said Daniel Medwed, a law professor at Northeastern University who wrote a book on prosecutorial suppression of evidence.

Every documented instance of dishonesty in a disciplinary record should be disclosed, Medwed said. 

But where, exactly, to draw the line? 

Putting someone on the Brady list requires more than hearsay, said Loretta Sheehan, a local attorney and former city and federal prosecutor. A drug dealer claiming, without evidence, that a cop stole dope money isn’t going to make the cut, she said. 

“It is important that it’s more than just an allegation, that there is a finding by, for example, an administrative review board, or by a prosecutor’s office, or by a guilty plea,” she said. 

In an email, HPD spokewoman Michelle Yu said the department’s Professional Standards Office checks its records upon the request of prosecutors for information about any officer with “final, sustained charges relating to truth or veracity.” That practice started about a decade ago, Yu said.

HPD Acting Police Chief Rade Vanic walks into room before press conference.
HPD Interim Police Chief Rade Vanic’s office wouldn’t agree to an interview about the Brady disclosure process. Cory Lum/Civil Beat/2021

HPD would not elaborate on its process for making a formal finding of dishonesty — whether, for instance, it automatically includes such a finding in every case involving credibility issues or decides case by case.

Despite HPD’s policy, Honolulu defense attorneys say they often can’t get information they believe to be relevant to a witness’s credibility through official channels and, even when they ask for it, face resistance.

Take the case of Honolulu police officer Paul-James Mariano. Mariano is not on Alm’s Brady list.

In March 2020, Mariano was named as a witness in a drunken driving case. 

The defendant’s attorney, Alen Kaneshiro, filed a motion to force prosecutors to turn over any Brady materials that might be in Mariano’s personnel file as well as that of another officer, Taylor Patton. 

In court records, prosecutors opposed the motion, arguing that Kaneshiro didn’t prove that such information — if it even existed — would be relevant. They likened Kaneshiro’s request to a “fishing expedition.”

City attorneys representing HPD, meanwhile, tried to block a subpoena from Kaneshiro, saying that the records he sought related to Mariano’s misconduct were “overbroad” and had “no bearing on witness impeachment.” 

A judge ultimately forced the city to turn over the records after another defense attorney, Megan Kau, intervened. She wrote a declaration on Kaneshiro’s behalf saying she had direct knowledge from one of her 2017 cases that Mariano had submitted reports that included “several inconsistencies.” The case ended in a plea deal that included, among other things, a fine and driver’s education.

In an interview, Kau, a former deputy prosecutor, said the office did not maintain a Brady list when she was there. Instead, she had to rely on HPD or the police commission.

“The only way they can create a list,” she said, “is if HPD discloses that information to the office or if a defense attorney brings a motion saying, ‘Hey, I know this officer did something wrong.’”

HPD’s misconduct summaries provided to the Legislature every year lend support to defense attorneys’ contentions that the prosecutor’s Brady list is, at best, incomplete.

HPD Seal before Police Chief Susan Ballard press conference.
Officers who were disciplined for filing falsified overtime documentation are missing from Alm’s Brady list. Cory Lum/Civil Beat

HPD’s 2020 summary of disciplinary actions that led to firing or suspension includes officers John Bennett, Robert Natividad, Steven Nguyen, Sean Taoka, Matthew Jahja and Jason Tanaka. All were suspended for submitting falsified documentation regarding a federally funded DUI roadblock program. 

Some have retired. Jahja was just promoted to detective. But none appear on Alm’s Brady list. 

Officer Ivan-James Aberilla was suspended for three days after he omitted information from his police report following a car chase that ended in the driver crashing their vehicle, according to a 2020 summary. He is not on Alm’s list either. 

The Honolulu Brady List

So who is on the Brady list?

Alm’s office released the list and related documents in response to public records requests from Honolulu Civil Beat and the Civil Beat Law Center for the Public Interest.

Seventeen of the 29 are still working for HPD, according to the Honolulu Police Department. Civil Beat attempted to contact every officer on the Brady list for comment via phone, attorneys and HPD itself. Most did not respond. Some could not be reached. 

Civil Beat was able to directly reach only one officer on the Brady list who was willing to talk, but the retired officer would only do so on the condition of anonymity. 

The officer said he got in trouble for writing a false report but that he only recorded information as it was presented to him at the scene. 

“Just like any other case that we go to, whatever they tell us at the scene, it’s how we make our report,” he said. “If it turns out to be false, that’s not our problem.” 

Given the age of the officer’s case, the detailed case record has been shredded, so Civil Beat could not verify or disprove his account. 

The officer said being a so-called “Brady officer” didn’t really impact his cases, his ability to testify or his career. 

“It never bothered me,” he said. 

Defense attorneys would request his disciplinary records, he said, which he believed was a tactic to delay cases. But the information was never used against him, he said. 

“Not a single one of them would ever bring it up when I testified,” he said.

Jared Spiker, right, pictured with former police chief Louis Kealoha, was HPD’s Officer of the Year in 2016. He’s on the prosecutor’s Brady list. Honolulu Police Department YouTube

Another officer on the Brady list is Jared Spiker, named Officer of the Year in 2016 for issuing more tickets and arresting more people than almost any of his colleagues. 

Spiker landed on the Brady list after Burge appealed a client’s drunken driving convictions all the way to the Hawaii Supreme Court. 

Burge challenged Spiker’s credibility, pointing to three prior cases in which the officer’s truthfulness was called into question, according to the resulting Hawaii Supreme Court opinion. 

After a District Court judge would not allow Burge to cross-examine Spiker about the cases, he appealed to the Supreme Court. The court found that, contrary to the state’s contention that Spiker simply had lapses of memory, two of the cases cited by Burge were relevant to his credibility. 

A law enforcement officer’s credibility is clearly called into question where he admits to submitting a falsely sworn document in an administrative proceeding due to a departure from his usual practice,” the court wrote. 

“We also cannot say that such error was harmless beyond a reasonable doubt, as the outcome of (the defendant’s) trial hinged upon the credibility of the two HPD witnesses against him.” 

In the end, the Hawaii Supreme Court vacated the conviction of Burge’s client and sent the matter back to the District Court. 

Most of the other officers on the prosecutors’ Brady list were charged with crimes, and were therefore known to the office independently of the HPD disciplinary process. Of the 24 Brady officers charged with crimes, 16 pleaded no contest, one pleaded guilty, two cases were dismissed, another didn’t proceed and four officers were acquitted. 

For instance, Blake Arita was charged with tampering with a government record in 2011 after he lied in a police report, fabricating a littering case against a man who Hawaii News Now reported was homeless. He pleaded no contest. 

Blake Arita, pictured right, was recognized in 2013 for his “outstanding work in combating crime.” He is on the Brady list. Honolulu Police Department YouTube

Arita is still on the force. 

Another Brady officer, Erick Tanuvasa, was charged with tampering with a government record in 2019 after he was accused of submitting false health forms to the city. He was acquitted the following year. 

In an emailed statement, Tanuvasa’s attorney Marcus Landsberg said his client “hates that the Brady list restricts his ability to further serve the community.”

“He was acquitted, someone jumped to a conclusion that wasn’t necessarily correct,” Landsberg said. “But now if he is the main officer in any case, what happens? It ends up being all about another incident he was acquitted of.”

While Tanuvasa was acquitted, HPD internally sustained the charge. The department initially fired him, but the punishment was reduced to a 60-day suspension through the union grievance process. Tanuvasa is still on the force. 

Others on the Brady list no longer work for HPD but could still be called in to court to testify on their old cases. 

Only one officer on the Brady list got there because of internal HPD discipline. 

Brady v. Maryland

The evolution of Brady disclosures began with the U.S. Supreme Court’s decision in Brady v. Maryland in 1963.

In 1972, the Supreme Court wrote that “Brady material” includes not only information that points to a defendant’s innocence but also evidence that would impeach the government’s own witnesses, such as police officers. 

The Police Files

That decision, in United States v. Giglio, formed the basis for the lists Alm’s office and other prosecutors maintain to keep track of officers with a record of dishonesty.  

In 1985, the Supreme Court ruled that prosecutors must hand over Brady information without being asked. 

And 10 years after that, the court decided it wasn’t enough that prosecutors only tell the defense what they happen to know about a witness’s credibility. They also have “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” 

What the Supreme Court didn’t do when it made its Brady decision – and hasn’t in years since – is explain exactly what steps prosecutors need to take to find evidence that might impeach their witnesses, according to Jonathan Abel, an associate professor at the University of California Hastings College of Law and an expert on the Brady doctrine. 

Prosecutor’s offices across America interpret the requirements differently, Abel wrote in his 2015 report “Brady’s Blind Spot: Impeachment Evidence In Police Personnel Files and the Battle Splitting the Prosecution Team.”

In some states, prosecutors have access to police personnel records. In others, like Florida, police misconduct records are so open to the public that Brady material contained in them doesn’t even have to be disclosed by prosecutors, Abel wrote. Information that can be obtained with “reasonable diligence” doesn’t have to be disclosed under Brady, according to Abel’s report. 

In Honolulu, for decades, the city prosecutor’s office did not maintain its own Brady list, according to former prosecutors. Randal Lee, a city prosecutor from the early 1980s through 2005, said the office never had one when he was there. Former prosecutor Kau, who worked in the office from 2006 to 2010, said the same. 

Civil Beat was unable to reach Alm’s predecessor, Keith Kaneshiro, for comment. Former prosecuting attorney Peter Carlisle, who was in office from 1997 through 2010, did not respond to an interview request. 

Lee said prosecutors didn’t see it as their job to find out about police misconduct, recalling that he never contacted HPD to ask whether an officer had credibility problems. 

“If the prosecutor has no reasonable basis to feel the officer has been disciplined, the prosecutor is not obligated to do the defense’s job,” Lee said.

But legal scholars, including Abel and Medwed, argue that the Supreme Court rulings do, in fact, obligate prosecutors to seek out information about officer dishonesty, even without the defense asking. 

“Brady relies on prosecutors serving the interest of justice, even if it makes their own jobs harder,” Abel said. 

Aliiolani Hale, the home of the Hawaii State Supreme Court. It is the former seat of government of the Kingdom of Hawaii and the Republic of Hawaii. 9.16.14
The Hawaii Supreme Court ruled last year that prosecutors don’t have to see police disciplinary files themselves. They can rely on the word of the police department. PF Bentley/Civil Beat/2014

The Hawaii Supreme Court ruled last year that prosecutors can fulfill their Brady obligations by asking the Honolulu Police Department and the Honolulu Police Commission to check their records. But prosecutors do not need to view the records themselves, the court found. 

No law requires prosecutors to maintain Brady lists, but it’s a best practice, according to a new report from the Institute for Innovation in Prosecution at John Jay College of Criminal Justice.

The lists help prosecutors keep track of police witnesses whose records require a disclosure to the defense and also witnesses whose conduct was so egregious that they shouldn’t be called at all, the report states.  

Exactly who should be listed is a matter of prosecutorial discretion. Lists commonly include officers investigated or charged with crimes, but can also include officers credibly accused of perjury in court, Medwed said. 

Abel believes disclosures should definitely include information in disciplinary files, which are “critical in impeaching officers’ credibility on the stand,” he wrote in his report. 

“For the defendant, the impeachment material in these can mean the difference between acquittal and conviction, between life and death,” he wrote. 

Alissa Heydari, deputy director for the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, said there are several steps prosecutors can take to improve their Brady compliance.

Her recommendations include: signing a memorandum of understanding with the police department to specify how police will convey the existence of pending or sustained disciplinary actions to prosecutors; ensuring prosecutors are aware early on if their cases rely on a Brady list witness; and training staff to disclose Brady information to the defense as quickly as possible.

She also recommends developing a clearly defined standard of proof for adding officers to the list and creating a mechanism by which officers can appeal their inclusion on it.

In numerous interviews, defense attorneys expressed optimism about Alm releasing his Brady list. 

Jacquie Esser, a federal public defender, said Alm’s list is in need of improvement but making it public is a good step toward justice. 

“This will help people now,” she said. “But the people who have pled and been sentenced, they’re out of luck.” 

Civil Beat reporter Nick Grube contributed to this report. 

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