‘Where’s The Hammer?’ Hawaii Prosecutors Dodged Public Discipline For 40 Years Despite Misconduct

Prosecutors sometimes cross the line. But for a host of reasons, the Hawaii Supreme Court does not sanction them.

Iosefa Pasene could have spent the rest of his life in prison.

Blamed for a 2009 Chinatown murder he says he didn’t commit, Pasene went through three trials. The first two ended in mistrials after jurors couldn’t agree on a verdict. At a third trial in 2014, he was convicted and sentenced to life behind bars.

But a decade after the murder, in 2019, the Hawaii Supreme Court threw out Pasene’s conviction, saying it was tainted by prosecutorial misconduct.

In its opinion, the Supreme Court said prosecutor Rodney Veary displayed a “persistent failure” to abide by legal and ethical standards in the case.

Former Honolulu prosecutor Rodney Veary was found by the Hawaii Supreme Court to have violated Iosefa Pasene's right to a fair trial.
Former Honolulu prosecutor Rodney Veary was found by the Hawaii Supreme Court to have violated Iosefa Pasene’s right to a fair trial. Hawaii News Now/2019

In his opening statement alone, the court sustained six objections. Throughout the trial, Veary improperly attacked Pasene’s defense by mentioning allegedly damaging camera footage that wasn’t in evidence. He asked leading questions of witnesses. And he later mocked the idea of the presumption of innocence, noting that mafioso John Gotti and cult leader Charles Manson were also presumed innocent at trial.

“The judge would tell him, ‘Don’t do this, don’t do this’ and he would do exactly what the judge told him not to do,” Pasene said in an interview. “The judge kept warning him and giving him admonishments and telling the jury just to disregard it, but they can’t disregard nothing that they already heard.”

Veary’s errors were so frequent that the Supreme Court justices wondered if they were purposeful. In the end, the justices said his misconduct was “so prejudicial as to jeopardize Pasene’s right to a fair trial.”

Pasene is now a free man and is suing the City and County of Honolulu. As the case played out, Pasene got in trouble with the law several times, including convictions for terroristic threatening and assault, and a guilty plea to a harassment charge. But it was the murder charge that he said robbed him of a decade of his life in pretrial detainment and prison.

In that time, his father and two brothers died, and he lost contact with his young daughter, he said.

Iosefa Pasene was convicted of a murder he says he didn't commit after a Honolulu prosecutor violated his right to a fair trial.
Iosefa Pasene was convicted of a murder he says he didn’t commit after a Honolulu prosecutor violated his right to a fair trial. Courtesy: Iosefa Pasene/2022

“My daughter was five months old when I got arrested,” he said. “When I got out, she was 11 years old. She barely even knew me. She barely knows me.”

Pasene said he filed a complaint against Veary with the agency that regulates Hawaii’s lawyers. But the now former prosecutor, who could not be reached for comment, never faced any public discipline for his conduct.

In theory, lawyers have an incentive to follow professional rules, including trial rules. If they don’t, their licenses to practice law are on the line.

Prosecutors, however, have little to fear.

The Hawaii Supreme Court, which is charged with holding the state’s licensed attorneys accountable for adhering to professional standards, has the power to publicly reprimand, censure, suspend and even disbar attorneys, including prosecutors.

But in the last 42 years, the court has not taken any of these actions in a single case of prosecutorial misconduct, according to a Civil Beat examination of hundreds of public disciplinary records going back to 1980. Some prosecutors have gotten in trouble for violations not directly related to their work, such as drug crimes, but not for actions taken in the course of a prosecution.

Instead, prosecutors who cross the line are chastised for their misbehavior in private, according to the Office of Disciplinary Counsel, which investigates and processes complaints against attorneys on behalf of the Supreme Court. Records of those instances are kept confidential.

“It doesn’t rise to the level of public discipline,” Bradley Tamm, the office’s chief disciplinary counsel, said in an interview.

Prosecutors make up a small percentage of attorneys, and most complaints about lawyers of all kinds get dismissed. In addition, unlike private attorneys, prosecutors don’t have clients whose grievances over attorney fees are easier to prove than claims from a criminal defendant who says they were wronged. The office is especially concerned about cases in which attorneys misbehave with intent and knowledge, a category that may not include overzealous prosecutors who inadvertently step over the line.

Still, the lack of prosecutorial discipline has become an issue nationally, with academics and criminal justice reformers concerned about it for years. In other states, prosecutors have been suspended and disbarred for violations related to their jobs, including hiding evidence in a case that landed one defendant on death row, but those instances are few and far between. Nationally, reforms that would increase accountability and transparency after prosecutors transgress have been proposed, but those suggestions haven’t caught on in the islands.

Meanwhile, Hawaii judges have identified numerous instances of prosecutorial misconduct in the last four decades, a review of appellate court records shows. In more than two dozen cases, the misconduct was so serious that judges threw out indictments, convictions or sentences because they determined the original proceedings violated the defendant’s constitutional rights.

In their written decisions, appellate judges described various wrongdoing as “harmful,” “egregious” and “extreme.” One murder case was permanently dismissed after a prosecutor withheld evidence from the defense and lied to the court. But none of these instances resulted in public accountability for the prosecutor.

The judges’ opinions themselves don’t even identify the prosecutors by name.

The Hawaii Supreme Court has identified prosecutorial misconduct that it deemed serious enough to throw out convictions but for decades has chosen not to publicly discipline the prosecutors at fault. David Croxford/Civil Beat/2023

“Where’s the hammer? There is none,” said Ken Lawson, co-director of the Hawaii Innocence Project. “And so the attitude becomes: If I’m not going to get in trouble for it, I’ll take my chances.”

The Hawaii Supreme Court declined to make anyone available to be interviewed for this story.

However, in a statement, Jan Kagehiro, a spokesperson for the Judiciary, said findings of “prosecutorial misconduct” — which is a legal term of art — are not necessarily violations of Hawaii’s professional rules.

Some prosecutorial misconduct amounts to harmless error. However, the Supreme Court has stated in numerous cases that, far from being harmless, prosecutors’ misbehavior was a likely factor in the defendant’s conviction.

Defendants may serve years in prison before their trials are deemed unfair by a higher court. After a conviction is vacated, they may undergo another trial, or the case may stop there.

Meanwhile, crime victims have experienced the difficult emotional journey of a trial and the relief of a conviction only to see it disappear years later because of something out of their control. Convictions achieved through dubious methods are at risk of coming undone.

“Where’s the hammer? There is none.” — Ken Lawson, co-director of the Hawaii Innocence Project.

In 2016, Matthew Williams was found guilty of sexually assaulting a teenage boy and was sentenced to 20 years in prison.

However, he appealed on the grounds the prosecutor introduced incriminating evidence that hadn’t been previously shared with the defense and presented damaging witness statements that the court had previously barred from the trial.

Even though there was sufficient evidence to convict Williams, the Hawaii Supreme Court justices ruled that the trial was unfair and vacated the conviction. Williams later pleaded no contest to misdemeanor sex assault charges and was sentenced to 180 days in jail and a year of probation.

Prosecutor Keith Kaneshiro announces a 3rd possible trial for Christopher Deedy.
Without professional discipline, prosecutors are accountable only to their elected bosses. Honolulu’s last elected prosecutor, Keith Kaneshiro, is currently facing federal corruption charges. Cory Lum/Civil Beat

Generally, prosecutors have immunity from lawsuits stemming from their work. So in the absence of public discipline, prosecutors are accountable only to their elected bosses.

Honolulu Prosecuting Attorney Steve Alm said he’s comfortable with that because of how he leads his department. In his two years in office, Alm said he’s boosted training of his deputies and cultivated a culture focused on justice over winning cases at any cost.

But he said it’s better to have a system of accountability that doesn’t rely so heavily on the integrity of whoever happens to be the elected prosecutor.

Justin Kollar, Kauai’s former prosecuting attorney, called for other institutional safeguards.

“They’re the most powerful actors in the justice system,” he said. “They decide what charges to bring, what outcomes to seek, what evidence to employ. And their actions have incalculable impact on people’s lives. There is a great potential, when you’ve got a bad actor, to really create a whole ton of harm.”

Why Prosecutorial Discipline Stays Private

The Office of Disciplinary Counsel is set up to be a licensing agency, according to Tamm, not unlike those that oversee plumbers or hairdressers.

“Our mission here is to protect the public, maintain the integrity of the judicial system, and improve the profession,” he said.

But Hawaii’s attorney discipline files are dominated by one subset of the profession: private attorneys who run their own small firms.

Many of the disciplined attorneys were punished for mishandling client funds or committing crimes, such as failing to file tax returns. Some are mainland lawyers who were punished in other states and received reciprocal discipline in Hawaii. Others were removed from the legal bar’s rolls because of incapacitation from illness.

The records are largely devoid of attorneys who work for the government, such as public defenders or lawyers who work for the state or counties. Also rarely seen are attorneys from Honolulu’s biggest and most powerful law firms.

 

Doug Chin, a former Hawaii attorney general, said the disciplinary system as a whole isn’t set up to hold prosecutors accountable.

“The disciplinary system is designed to protect clients,” he said. And prosecutors don’t have clients.

When prosecutors misbehave, the government — and ultimately the taxpayer — is the one who pays the price, he said.

There are also practical reasons for giving prosecutors some leeway, according to Jacob Delaplane, whom a judge found engaged in prosecutorial misconduct when he worked for the City and County of Honolulu.

“I don’t think anyone should be immune from the disciplinary board,” he said. “But if your prosecutors are constantly scared of taking on tough cases or advocating for victims’ rights in a passionate way, if they’re scared that will be met with claims from ODC, I think that would reduce their effectiveness.”

Kollar believes the political power of prosecutors plays a role too.

“Folks don’t like to mess with law enforcement,” he said. “That can lead to this kind of hands-off approach that policymakers have taken.”

Hawaii Attorney Discipline Process graphic

The Office of Disciplinary Counsel doesn’t have a policy against going after prosecutors, but several factors help explain the absence of public punishment, Tamm said.

For one, prosecutors represent a minority of licensed attorneys, he noted, so one would expect them to have proportionally fewer disciplinary cases. According to the Hawaii State Bar Association, government attorneys represent 18% of all lawyers in the state. The association doesn’t break out the number of prosecutors specifically.

Second, the vast majority of the 300 complaints the ODC receives about attorneys annually get dismissed, he said. Oftentimes they are what he calls a “nothing burger.” An attorney may have acted inappropriately, such as yelling at a client, but that’s not necessarily a violation of the standards of conduct, he said.

 

The vast majority of complaints are the result of unintentional errors or minor problems that can be resolved with a private “letter of caution,” Tamm said.

Public discipline is generally administered when there is clear and convincing evidence that an attorney has crossed the line knowingly or intentionally, Tamm said.

“That’s a pretty high standard,” he said. “The vast majority of mistakes that are made are just negligence.”

The baseline discipline for knowing or intentional misconduct is suspension or disbarment, respectively, according to Tamm. But there are often mitigating factors that can knock that discipline down to a public reprimand or a private reprimand, he said. Those factors include the absence of prior discipline, remorse and cooperation with the investigation.

Most cases of prosecutorial misconduct involve the prosecutor mentioning something at trial that was excluded from evidence, according to Tamm. In “the heat of battle,” sometimes an attorney slips up, he said.

“They get disciplined,” Tamm said. “You just don’t see it in public discipline because they didn’t act with intent or knowledge.”

In Tamm’s experience, the lawyers who misbehave tend to be the ones working as their own bosses, not for large law firms or prosecuting attorney’s offices where he said there is more built-in accountability.

“Bad lawyers usually don’t work in large organizations,” he said. “You’ve got this adult supervision in prosecutor’s offices.”

When prosecutors do screw up, they can be fired, which Tamm said is “a heavier sanction than I can impose.”

Tamm acknowledged that courts have reversed criminal convictions because of prosecutorial misconduct but said comparing that with disciplinary cases is “apples and oranges.” Appellate courts are concerned with whether a defendant received a fair trial.

“It’s not a finding on the motives of the prosecutor,” he said. “We take attorney misconduct very seriously, no matter who it is, and where a person works doesn’t affect our decision whether or not to prosecute.”

‘Disdain For The Law’

The result is a disciplinary system that remains silent even as significant prosecutorial wrongdoing plays out in the legal system.

Hawaii court records describe a range of improprieties by prosecutors going back decades, including baselessly attacking the defendant’s character, withholding evidence and introducing prohibited information into a trial.

Credible claims of prosecutorial abuses have also shown up in lawsuits. Although prosecutors are required to pursue only cases in which they believe there is probable cause, they sometimes go after cases that defendants and judges say fall short of that standard.

In 2020, Honolulu taxpayers shelled out $1.4 million to settle a malicious prosecution case filed against former prosecuting attorney Keith Kaneshiro and several of his subordinates, including disgraced former prosecutor Katherine Kealoha.

The case occurred five years before Kealoha was convicted on federal corruption charges.

The plaintiff, Tracy Yoshimura, had been the target of what was billed as the largest gambling indictment in state history. But the judge, Randal Lee, found the case was tainted by misconduct when Kealoha and Delaplane presented false evidence to the grand jury. The case was dismissed, and prosecutors later used some of the same flawed evidence to secure another indictment. That one too was dismissed.

Tracy Yoshimura, the owner of PJY industries, believes former Honolulu prosecutor Keith Kaneshiro’s office went after him because he criticized the prosecutor in the media. David Croxford/Civil Beat/2022

Kaneshiro is now out of office and is facing corruption charges related to accusations that he accepted campaign donations in exchange for prosecuting an innocent person. He maintains an active law license. (“You can presume — although I cannot confirm — that there is a complaint pending,” Tamm said.)

Kealoha is in prison for unrelated crimes. Delaplane is a court-appointed attorney for indigent parents in child welfare cases who has been mentioned in criminal court records involving Kealoha and Kaneshiro but has not been charged himself. He told Civil Beat his misconduct in Yoshimura’s case was an honest mistake.

Meanwhile, the doomed gambling cases “destroyed me financially,” Yoshimura said in an interview.

“They have taken away people’s license for less than that,” he said. “Why couldn’t they do it here with something this serious?”

Other prosecutors whose actions resulted in pricey settlements for the city similarly have not been publicly disciplined.

Julie Ake settled a lawsuit with Honolulu after she was prosecuted for assault. A judge faulted the prosecutor for pursuing the case despite video evidence that he said showed the complaining witness was lying.
Julie Ake settled a lawsuit with Honolulu after she was prosecuted for assault. A judge faulted the prosecutor for pursuing the case despite video evidence that he said showed the complaining witness was lying. Hawaii News Now/2020

Julie Ake got a $50,000 payout from the city last year after she was prosecuted for first-degree assault in 2017. Then-Circuit Court Judge Todd Eddins permanently dismissed her case after being shown a video that had not been submitted during a probable cause hearing that he said pointed to Ake’s innocence.

In a 2018 ruling, the judge said that deputy prosecuting attorney Lynn Park deceived him by not including that evidence in the case file exhibits, Hawaii News Now reported.

“There was unquestioned evidentiary value to the event’s taping,” the judge wrote. “Yet, the prosecuting attorney chose not to submit the best evidence.”

In an interview, Park, now retired, said the judge’s ruling still upsets her, but she stands by her charging decision. To this day, she believes her interpretation of the grainy, black-and-white video warranted an assault charge. She said she was not required to submit the video to the district court judge, and it wasn’t the practice of the prosecutor’s office.

“I’m well aware of whatever shortcomings I may have. This wasn’t one of them,” she said. “There was probable cause.”

Park is not listed in publicly available attorney disciplinary records, and she declined to say whether the ODC ever investigated her.

Sefo Fatai is currently suing the city in federal court after an eight-year fight against unfounded drug charges left him homeless. There was no money or drug evidence connected to Fatai, and the case hinged on a confidential informant who was under pressure to name her supplier in order to secure her own freedom.

Sefo Fatai works on a truck in Waianae before he started working on a truck. Sefo is a trained automobile mechanic and has to do masonry to make ends meet.
Sefo Fatai was embroiled in an eight-year legal battle after prosecutors pursued a case that he says had no probable cause. Cory Lum/Civil Beat/2019

But prosecutors took Fatai to trial four times before a judge dismissed the case and forbade it from being refiled. His civil case is scheduled to go to trial in July.

The attorneys who prosecuted Fatai were not publicly disciplined, records show.

In several cases in recent years, prosecutors baselessly undercut the defendant’s credibility by indicating to the jury that the defendants had a motive to lie. One prosecutor called the defendant an “asshole” and “thief” and accused him of trying to “bamboozle” the jury. The Supreme Court ordered a new trial.

Prosecutors are not permitted to call a defendant a liar unless there is evidence to back it up.

Coming from a prosecutor, that kind of accusation can carry weight with jurors, and it represents “extreme misconduct,” the Hawaii Supreme Court wrote in an opinion last year.

A defendant’s biggest decision is whether to testify at trial, the court said. If prosecutors can “generically attack” the credibility of any defendant who takes the stand, it interferes with the defendant’s constitutional right to testify on their own behalf, the court wrote.

In another case, the prosecutor told the jury in closing arguments not to get “caught up in the mumbo jumbo” of the law and instead go with their “gut feeling” about the defendant’s guilt or innocence. That statement flew in the face of the jury’s instructions to assess whether the government had proved its case beyond a reasonable doubt, the Hawaii Supreme Court found.

The prosecutor’s argument to the jurors “encouraged disdain for the law,” the Supreme Court said.

Several times, prosecutors have called attention to the fact that the defendant chose not to testify. In throwing out a conviction last year, the Hawaii Intermediate Court of Appeals noted that such comments infringe on a defendant’s “constitutional right not to be a witness against himself.”

Aliiolani Hale, Hawaii State Supreme Court buidling.
The Hawaii Supreme Court has identified numerous cases in which prosecutors crossed the line. Cory Lum/Civil Beat/2022

Some prosecutors have resorted to racial prejudice when trying to make their case.

In a 1999 case that has since become notorious in the local legal community, a Honolulu prosecutor referred to “every mother’s nightmare.”

“Leave your daughter for an hour and a half, and you walk back in, and here’s some black, military guy on top of your daughter,” he said.

In vacating the conviction in that case, the Supreme Court wrote that references to race that lack a clearly legitimate purpose “constitute a particularly egregious form of prosecutorial misconduct.”

A year later, another Honolulu prosecutor made “irrelevant and inflammatory references to race” when he emphasized that “six African-American males” had raped a “young local woman.” The Supreme Court said the violation warranted a new trial.

In one case, a prosecutor urged the judge to sentence a Chuukese man to 20 years in prison to “send a message out to the Micronesian community” that they cannot “drink all they want and not be responsible for what happens after that.”

The Hawaii Intermediate Court of Appeals found the remarks “highly improper” and ordered that the defendant be resentenced.

“In resorting to such arguments, the prosecutor committed a particularly harmful form of misconduct,” the court said in its 2014 opinion.

The Hawaii Supreme Court later remanded the case to the trial court. It has not been retried.

The Sole Exception

The only Hawaii prosecutor to face significant disciplinary consequences for actions taken in the course of their job in the last four decades was Kealoha, according to Civil Beat’s review.

But even Kealoha, whose name is now synonymous with corruption in Hawaii, wasn’t technically disciplined. The former prosecuting attorney who is now in federal prison for a smorgasbord of crimes was allowed to resign from the practice of law in lieu of discipline.

And that only happened in 2020 after she was convicted of conspiring to frame an innocent man for an offense he didn’t commit — stealing her mailbox — and after she pleaded guilty to abuses of power in unrelated drug and bank fraud cases.

Critics have said for years that the ODC should’ve stepped in sooner.

Katherine Kealoha leave District court.
Katherine Kealoha was the subject of more than one complaint to the Office of Disciplinary Counsel before her conviction on corruption charges. The ODC did not take action. Cory Lum/Civil Beat/2018

After Judge Lee dismissed Yoshmura’s case in 2014 because of Kealoha’s prosecutorial misconduct, Yoshimura filed a complaint with the ODC against Kealoha and others. He said he didn’t hear back from the ODC until after Kealoha was convicted and had resigned in lieu of discipline.

In a letter to Yoshimura, the ODC said the resignation was akin to disbarment, which is “the heaviest disciplinary sanction possible.” But for Yoshimura, it was too little too late.

“I was livid. Who is there to oversee and protect people from these types of acts if they’re not going to do it?” he asked. “It’s like they want to sit back and have some other agency do their job.”

Lee did not refer Kealoha to the ODC in Yoshimura’s case. In an interview, Lee said he chalked up the situation to inexperience prosecuting financial crime and “inadvertent error.” But after Kealoha got Yoshimura indicted a second time based on the same bogus evidence, he said that was “abuse.” The judge presiding over that second indictment should’ve reported Kealoha to the ODC, he said.

“When they redid it the same way, it became malicious,” Lee said.

Gerard Puana speaks to media about the Katherine Kealoha sentencing.
Katherine Kealoha’s uncle, Gerard Puana, filed a complaint against her years ago. The ODC told him there was a lack of evidence to proceed with discipline. Cory Lum/Civil Beat/2020

Clinton Billington, a former supervising investigator for the ODC, said Lee had an opportunity to help nab Kealoha years before she was convicted. In his view, Lee blew it.

In Billington’s experience, complaints from judges are taken much more seriously by the ODC than complaints from defense attorneys or defendants, he said. When judges fail to act, they become “part of the problem,” he said.

“He had her before anybody had her, before the FBI had her,” he said. “This was his own finding, and he didn’t report her.”

The ODC again chose not to take action against Kealoha in 2018 after her uncle, Gerard Puana, filed a complaint about the mailbox case that would later put her behind bars. The office said it was unable to find clear and convincing evidence showing that a violation occurred, prompting Puana’s attorney Eric Seitz to call the chief disciplinary counsel Bruce Kim “incompetent and unethical,” the Honolulu Star-Advertiser reported at the time.

Tamm said it made sense for the office to let the feds do their work. His office works on a $1.5 million annual budget to police over 800 lawyers, he said.

“This is not the FBI,” he said. “The ODC missed that one. I’m not apologizing for it. We’re a small office. We have limited resources. We do what we can do.”

‘The Public Has A Right To Know’

For Tamm, Hawaii’s attorney disciplinary process, while imperfect, is “as fair as we can possibly make it.”

However, local and national criminal justice reform advocates have identified ways the disciplinary systems could be improved.

For one, judges should comply with their obligations to report misconduct to disciplinary authorities, the late Chicago attorney Thomas Sullivan and Pulitzer Prize-winning journalist Maurice Possley wrote in a 2015 report for the Journal of Criminal Law and Criminology.

“Personal relationships may make it difficult and distasteful to report to disciplinary authorities, but the serious policy concerns implicated by prosecutorial misconduct require action,” the authors wrote.

Judges should report misconduct they see in their courtrooms to disciplinary authorities, criminal justice reformers say. Ludwig Laab/Civil Beat/2021

The national Innocence Project would take it a step further. Disciplinary committees should require automatic filing of complaints whenever a court finds a prosecutor has behaved unethically, the group wrote in a 2016 report.

Currently, the rules of the Hawaii Supreme Court don’t give the disciplinary board the authority to investigate a prosecutor just because the Supreme Court has identified prosecutorial misconduct, Kagehiro noted.

“On the contrary, the Disciplinary Board may only investigate an attorney where the attorney has allegedly violated” the Hawaii Rules of Professional Conduct, the court wrote in a 2005 opinion.

The Innocence Project also recommended that disciplinary committees get adequate resources to investigate complaints of prosecutorial error and misconduct.

“Similarly, staff should be trained to identify and understand the issues raised in these complaints, different from the complaints made against private lawyers in civil proceedings,” the report states.

To increase accountability and transparency, Alm said prosecutors whose cases get overturned should be named in the appellate court’s decision.

“Identify all the parties in the case,” he said. “That might be a step in the right direction.”

In addition, the Innocence Project report stated all grievance decisions should be publicly available and easily found on an online database.

“It should always be a public reprimand because what you did was in a public position,” Lawson said. “When you’re not doing justice, and you’re intentionally not doing justice, then the public has a right to know.”

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