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Ka Loko investigation can continue

With rumors swirling around Lihu‘e’s 5th Circuit Courthouse that a grand jury was set to convene and indict Jimmy Pflueger for his role in the 2006 Ka Loko Reservoir Dam disaster, a motion from his attorney seeking to recuse state Attorney General Mark Bennett and disqualify his office from the investigation on grounds of a conflict of interest was denied yesterday by Chief Judge Randal Valenciano.

In oral arguments, Pflueger attorney Bill McCorriston sought to prevent a potential grand jury from hearing evidence, alleging that because the state is “in the mix” as a defendant in civil lawsuits to be heard starting in February 2009, any criminal charges should instead be handled by a special independent investigator or the county of Kaua‘i prosecuting attorney — “anybody with clear eyes.”

“It looks bad, it smells bad, it is bad,” McCorriston said of the “open and obvious” conflict.

He cited the AG’s recent referral of the investigation of the Department of Business, Economic Development and Tourism and its Director Ted Liu, who allegedly awarded a government contract to the third-ranked bidding company, to the Honolulu prosecutor as an example of how things should be handled.

When asked yesterday if her office would be able and willing to take on a Ka Loko criminal case, county prosecutor-elect Shaylene Iseri-Carvalho said it was premature to discuss that possibility because potential conflicts of interest, due to her role as County Council member or other factors, could not be identified until after she was able to look closely at the investigation.

However, when asked to envision a scenario in which her office had no conflicts, Iseri-Carvalho said, “If the state takes the case to grand jury, it’s difficult for a new agency to come in and pick up the ball from there and continue the case.”

Deputy Attorney General Mark Miyahira argued his office has formed two separate teams — one to defend the state against civil claims in the case, and another to investigate and potentially prosecute criminal defendants — that do not share information, complying with the law, and should be allowed to continue to conduct its investigation.

Miyahira referenced the 1990 Hawai‘i Supreme Court case State v. Fritz Klattenhoff, in which the court determined the AG could “represent a state employee in civil matters while investigating and prosecuting him in criminal matters, so long as the staff of the AG can be assigned in such a manner as to afford independent legal counsel and representation in the civil matter, and so long as such representation does not result in prejudice in the criminal matter to the person represented.”

McCorriston repeatedly argued the “ethical wall” separating the two teams should be “sacrosanct” but was instead apparently “permeable,” and Valenciano joked the wall was not high enough as it has allowed Bennett, purportedly on the criminal prosecution team, to read depositions obtained by the civil litigation team, according to a pair of declarations.

“You have to excuse my simplistic definition,” Valenciano told Miyahira, “but that sounds like sharing to me.”

Miyahira highlighted the difference between the two units sharing information — something Valenciano described as “huddling” and said would be problematic — and traditional evidentiary discovery that would be unquestioned if the civil attorney was not part of the same government department but rather a third party.

At the end of the hearing, the judge explained that he had not received sufficient factual presentation from McCorriston regarding specific improper passing of information between teams to warrant either Bennett’s recusal or the disqualification of the entire office, closing the door on the motion but leaving a window open to revisit the matter should more details come to light.

McCorriston, who had argued in court there was no way he would be able to prove a negative — namely, that Bennett had obtained the documents improperly — and asked Valenciano to instead draw inferences from facts already on record, described the situation as a “Gordian Knot” outside the courtroom.

“It’s a tough burden (Valenciano) has given us. We’ll have to get creative. … The final bell has not rung,” he said, noting a grand jury indictment at this moment would not be a fair administration of justice.

The imminence of that indictment remained just a rumor yesterday.

Miyahira told Valenciano he would not be specifically addressing any ongoing investigations or potential grand jury indictments, and afterwards declined to comment.

The grand jury may issue indictments as soon as today. Messages left for Bennett and Attorney General spokeswoman Bridget Holthuf yesterday were not returned as of press time.

Seven people on the North Shore were killed when the century-old earthen Ka Loko Dam breached on March 14, 2006, releasing some 300 million gallons of water.

Since the tragedy, Pflueger, the landowner, has been battling wrongful death lawsuits claiming he illegally altered the dam. Pflueger claims the state was negligent in its oversight of the dam.

The attorney general’s office reportedly convened a grand jury in July to gather evidence into the cause of the breach and recently subpoenaed former Kaua‘i Mayor Maryanne Kusaka to testify.

• Michael Levine, staff writer, can be reached at 245-3681 (ext. 252) or via e-mail at mlevine@kauaipubco.co

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