The trial is scheduled to begin May 29.

The Honolulu Police Commission postponed making a decision on whether it would provide taxpayer-funded legal representation for two police officers charged with felonies for their alleged role in a 2021 pursuit in Makaha that injured six people.

Honolulu Police Officers Erik Smith, Robert Lewis III and Jake Bartolome were charged March 16 with charged with a class C felony for “hindering prosecution in the first degree,” which carries a maximum five-year prison sentence. They were also charged with a misdemeanor for conspiring to hinder prosecution, punishable by a maximum one-year jail sentence. Officer Joshua Nahulu was charged with a class B felony for “collisions involving death or serious bodily injury,” which carries a maximum 10-year prison sentence. All four officers pleaded not guilty March 23.

Smith and Nahulu requested legal counsel from the Honolulu Police Commission, its agenda read. But the commission decided not to discuss it Wednesday.

“We’re going to defer” considering the requests for legal counsel the items “to the next meeting,” commission chair Doug Chin said.

The next police commission meeting is scheduled for May 17. The officers’ trial is slated for May 29.

The police commission already approved Bartolome and Smith’s requests for taxpayer-funded legal representation in three civil lawsuits that named them as defendants. Nahulu was approved to receive counsel in two civil suits against him.

In September, the commission found that Bartolome was acting within the scope of their employment when they engaged in the high-speed pursuit that led to the crash on Sept. 12, 2021.

“The Commission finds that Bartolome’s alleged actions of negligence and assault and battery upon plaintiffs as a result of a high-speed pursuit as alleged in the Complaint were, even if unlawful and regardless of motive or intent, incident to his performance of his duty as a police officer,” the commission wrote in a Findings of Fact and Conclusions of Law document released Sept. 21, 2022.

The commission found that Hawaii law “requires that the City provide counsel to a police officer who is prosecuted or sued for acts done in the performance of the officer’s duty as a police officer,” the document says.

But the standards of what constitutes acts done “in the performance of the officer’s duty” have shifted since the Hawaii Supreme Court decided in early March that the commission was wrong when it decided to approve ex-HPD Chief Louis Kealoha’s request for legal representation in one of Hawaii’s biggest corruption trials.

“Kealoha’s duties did not include overseeing a criminal conspiracy to hide his and his wife’s misappropriation of funds belonging to others,” the justices wrote. “Nothing in this record indicated that Kealoha was acting in any way to perform his duties as chief of police.”

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