Former deputy prosecuting attorney Jacob Delaplane said he believed he had probable cause when he brought felony second-degree theft charges against Honolulu architect Laurel Mau in 2014. 

The charges, later thrown out, are central to the bribery case against former Honolulu prosecutor Keith Kaneshiro and five co-defendants, including Dennis Mitsunaga, CEO of the engineering firm Mitsunaga & Associates Inc., where Mau was employed. 

Kaneshiro assigned Mau’s case to Delaplane shortly after he was hired in April 2014 and after the case had already been rejected by more experienced staff members for lacking probable cause.

Prosecutors say the charges against Mau were brought only after Mitsunaga orchestrated the donation of $50,000 to Kaneshrio’s campaign.

Under direct questioning from Assistant U.S. Attorney Michael Wheat last week, Delaplane testified that the entirety of the Mau case came directly from Mitsunaga & Associates via its attorney, Sheri Tanaka, also a defendant. There was never a police investigation into the claims that Mau had stolen from the company by conducting side jobs using the firm’s name and resources. 

But defense attorneys say Delaplane believed he had probable cause to charge Mau and police investigations aren’t required in every prosecution.

On Monday, the court also held a sealed hearing for Mitsunaga about his medical care at the Federal Detention Center, where he has been held since April 19 when he was arrested on suspicion of obstruction of justice and witness tampering. Before Judge Timothy Burgess cleared the courtroom, Mitsunaga’s lawyers were discussing medication their client needed to take.

Mitsunaga’s attorney, Nina Marino, declined to comment outside the courthouse. Mitsnuaga remains in federal custody.  

Investigating Mau

Through numerous emails over the course of months, Tanaka provided Delaplane with documents she considered incriminating from an earlier civil lawsuit between the firm and Mau. In turn, Delaplane used those documents to charge Mau with theft without any independent law enforcement investigation. 

Delaplane acknowledged he didn’t employ any investigative tools to verify the information Tanaka provided. He didn’t issue any subpoenas, he said. He also didn’t conduct any depositions because it “would’ve been a waste of time,” he said. Mau had already testified under oath in the civil case, he noted.

In retrospect, Delaplane acknowledged that “certainly there are things I missed,” and that he “trusted what had been presented to me as accurate.” 

Delaplane said one of his supervisors told him not to pursue a grand jury, in which a group of community members would assess whether the evidence amounted to probable cause. Delaplane claimed not to remember which supervisor gave this directive, though he acknowledged it could have been Kaneshiro. 

Besides, Delaplane said, conducting an investigative grand jury, which could take months, would not have been a “good use of public resources.” 

Instead, he was told to secure charges through the felony information process: The prosecutor submits a packet to a judge, who would then sign off that there was probable cause. Delaplane did produce a packet attempting to charge Mau with four felonies: two counts of stealing time from the Mitsunaga firm and two counts of theft by deception.

However, state court judge Clarence Pacarro rejected the case because it didn’t include a declaration from a law enforcement officer. 

At that point, Delaplane testified that he asked an investigator in Kaneshiro’s office, Vernon Branco, to sign a declaration that Delaplane himself prepared.

“So the way I viewed Mr. Branco’s involvement was basically to perform the perfunctory task of providing a law enforcement summary of what had already been revealed and submitting that as part of the charging packet to satisfy the request of the court,” Delaplane said.

Delaplane said he wasn’t aware of the campaign donations Mitsunaga and his associates were directing to his boss, but he would have wanted to know that at the time. 

“You don’t want to be in a situation where you are alleged to have been prosecuting people for your friends and donors,” Delaplane said. 

Probable Cause

Delaplane repeatedly told jurors during cross-examination he felt he had probable cause to charge Mau.

Crystal Glendon, who is representing Tanaka, asked Delaplane if he felt it was necessary to involve the Honolulu Police Department in the investigation. 

“This, in my view, was not a mystery that needed to be solved,” he said. “Mitsunaga & Associates had extensively investigated this on their own behalf and our office had looked at it with the information that was available to it at each stage of the review.” 

When Mitsunaga’s attorney, Nina Marino, questioned Delaplane, she showed jurors an email from a more senior prosecuting attorney saying that further investigation needed to be done on the case. The email showed other members of the prosecutor’s office were involved in reviewing the case besides Delaplane, she said.

“It certainly doesn’t say that there was no probable cause, does it?” Marino asked. 

“No,” he replied. 

Delaplane said it’s common for prosecutors to revisit cases and do more work to get them ready for trial. 

Tommy Otake, who is representing Mitsunaga & Associates president Chad Michael McDonald, said those at the firm who wanted to press charges genuinely believed they were victims of a crime. He also said there are no perfect prosecutions. 

“Did you just try your best?” he asked Delaplane. 

“I did,” he said. 

Branco took the stand at the end of the trial day and said Delaplane asked him in 2014 to interview Rudy Alivado, whom Delaplane said was a victim in the case. Alivado had paid Mau $2,800 in cash for work she did at his Kaneohe property in 2008 and 2009 while she was an employee of Mitsunaga & Associates. 

Branco said he called Alivado and spoke to him for five to 10 minutes about the job.

“I called him and I asked him about it,” Branco said. “He told me, yes, she did some work for me and she wanted cash, so I gave her cash, and that was it.” 

Branco will continue on the stand Tuesday morning. Wheat told Burgess he expects the government’s case to conclude on Thursday.