LIHU‘E — A hearing to consider defense motions in the zoning violations case of County Councilmember Tim Bynum hit a snag on Tuesday when the prosecution failed to file its response in 5th Circuit Court.
Judge Kathleen N.A. Watanabe ordered sanctions for the Office of the County Prosecuting Attorney for failing to respond in time to motions filed by defense attorney Daniel Hempey. His motion to suppress was filed on March 13, and a motion to dismiss the case based upon unconstitutionally vague and overbroad law was filed on March 16.
Hempey also filed a motion Tuesday to recuse the County Prosecuting Attorney’s Office from the case, based in part on evidence he produced as email communications.
Hempey said in court that County Prosecuting Attorney Shaylene Iseri-Carvalho might be called as a witness on concerns regarding extrajudicial statements.
The prosecution should have filed its response by last Wednesday, to be within the required 72 hours of the hearing because of the holiday, Hempey said.
First Deputy Prosecuting Attorney Jake Delaplane apologized to the court and cited significant discrepancies and late discovery for the delay.
Hempey recommended sanctions, citing a history of similar delays.
Watanabe ordered the prosecutor’s office to pay the fees of five defense witnesses present for the hearing that could not proceed.
The priority recusal matter is set for an April 5 hearing.
Should the case continue without a new prosecutor, the remaining two Hempey motions will be considered on April 19.
The trial remains set for April 23.
The witnesses, accompanied by Deputy County Attorney Mauna Kea Trask, were ordered back for the new hearing on the motion. They include County Planning Director Michael Dahilig and former Planning Director and current Parks Director Ian Costa. The other witnesses are County Planning Inspectors Les Milnes and Patrick Henriques, and Supervisor of Inspectors Sheila Miaki.
The sixth witness, a county information technology employee, will not testify after the prosecution agreed to the authenticity of an email communication to be entered as evidence.
The case began in district court last December. It was moved to circuit court for a jury trial demand in February.
Hempey entered not guilty pleas on two misdemeanor charges related to alleged zoning violations at Bynum’s Kapa‘a residence. The charges are for creating a division in a family or ranch-style dwelling, and for using a structure in a manner not permitted on agricultural land.
The two charges stem from a April 15, 2010, zoning compliance complaint that states Bynum converted a single family home to a multi-family dwelling without proper permits.
The notice stated that it was a violation of Sec. 8-19.1, which prohibits construction or development or use without a zoning permit when required. The other charge is related to County Comprehensive Ordinance Sec. 8-7.2, which lists categorical permitted uses and structures on agricultural land.
Considered code violations in 2010, it could have resulted in a $500 fine at that time. The county has since amended the charter to make it a misdemeanor charge that carries a penalty of up to a year in jail and a $2,000 fine.