OPA booted from Bynum zoning case

LIHU‘E — The 5tlh Circuit Court recused the Office of the Kaua‘i County Prosecuting Attorney from its misdemeanor zoning violation case against county councilman Tim Bynum in 5th Circuit Court on Thursday.

“Justice requires integrity and I am very pleased to have a very bright attorney who could ask the right questions, and articulate these issues clearly for the court,” Bynum said. “I am very pleased that the court agreed that the prosecutor’s office has misbehaved and made it inappropriate for them to proceed.”

The summary judgment from Judge Kathleen Watanabe followed testimony from a former deputy prosecuting attorney with the office. The case will now be forwarded to the State Attorney General. Motion hearings are still scheduled for April 19 and a trial to begin April 23.

Defense attorney Daniel Hempey’s motion to recuse was based on assertions that the prosecuting attorneymade public, extrajudicial statements about Bynum that affected his right to a fair trial. He added that the evidence makes it possible for County Prosecuting Attorney Shaylene Iseri-Carvalho to be called as a witness on concerns regarding extrajudicial statements.

The recusal motion also centered on a January letter from Iseri-Carvalho on behalf of the OPA to the County Council regarding legislative oversight of the Prosecutor’s Office.

First Deputy County Attorney Jake Deleplane argued that the letter was out of concern that Bynum appeared to be involved in actions against the OPA and reported it to Council Chair Jay Furfaro.

The letter stated Bynum, as a criminal defendant, has interest in using his position to negatively impact OPA operations. It said that his belief that the OPA was making a calculated attack against him was meritless and paranoid.

Hempey, nearly shouting, said the very idea that the OPA could assert that Bynum would place his own interest before the public safety of the people of Kaua‘i merits recusal, if not dismissal.

Defense witness Lucas Burns was a deputy prosecuting attorney with Kaua‘i OPA from Oct. 1, 2009, to March 31, 2011, when he resigned to work with the Hawai‘i County Prosecutor’s Office.

Deputy County Attorney Jennifer Winn argued a motion to quash Burns’ testimony about work-related conversations with Deleplane in a 2010 case. Winn said work-product conversations between attorneys are protected unless the defense can show substantial need, and that Burns’ testimony did not apply to Bynum’s case.

Although Watanabe said Winn offered a well-structured argument, she denied the motion and allowed Burns to testify. She said the prosecution waived its work-product protection rights when a redacted version of the letter became public record.

 After the motion was denied, Deleplane questioned Burns about their November 2010 conversation regarding the case of Victory Yokotake, the victim of a burglary and assault on Bynum’s property.

In March 2010, Yokotake was reportedly renting an attachment at Bynum’s home. Burns testified that Deleplane asked him to secretly record a conversation with Yokotake and to ask her about Bynum’s dwelling.

In August of 2010, Deleplane started with OPA and had just passed the bar exam. He said he didn’t have supervisory powers over Burns at that time and was instead in charge of organizing zone violation cases.

One of the cases related to a compliance complaint that Bynum had converted his single-family home into a multi-family dwelling without proper permits. He said the OPA responds to requests from all county departments and acts to corroborate evidence presented to determine probable cause.

Hempey sought to determine whether Deleplane’s questioning of Burns was an assertive effort to confirm probable cause for zoning violations. Hempy also asked about the appropriateness of using victim-witness testimony in an unrelated assault at the property to learn the layout of the room and the items inside.

Burns testified that he was uncomfortable with the idea and didn’t agree do question Yokotake.

Based on Burns testimony, Deleplane asked to continue the hearing until he could bring in another prosecutor from his office for the recusal motion because he may become a potential witness himself and feared impeaching testimony. He said that he would stay on as lead prosecutor in the case.

Watanabe denied the request and said the prosecution was compartmentalizing its arguments for its convenience and agreed with Hempey. The judge expressed serious concerns with the prosecutor’s office and ruled the Bynum case be handed over to the State Attorney General.

Deleplane objected to the ruling for the record and as a requirement for appeal. He said there were questions about Burns’ testimony.

The current charges in the misdemeanor case 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.

Defense witnesses expected to appear on April 19 include: County Planning Director Michael Dahilig, former Planning Director and current Parks Director Ian Costa, County Planning inspectors Les Milnes and Patrick Henriques, and Supervisor of Inspectors Sheila Miyake.

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