Special Prosecutor: Bynum case could not go to trial

LIHU‘E — The zoning violation case against County Councilman Tim Bynum was dropped by the State Attorney General on Thursday.

Judge Kathleen N.A. Watanabe of the 5th Circuit signed the order as dismissed with prejudice after both the prosecutor and defense attorneys filed written stipulations asking the Court to dismiss.

Special Deputy Attorney General Richard Minatoya said by phone Friday that he and a special investigator interviewed all six county witnesses and civilian witnesses. After reviewing testimony, the case file, and discussing county code ordinances with colleagues, he concluded that the case would not move forward.

“At that point it appeared that we wouldn’t survive the suppression,” Minatoya said.

Minatoya moved to dismiss with prejudice because he said a new case would lack the elements of the original and could not see charging again based on those merits.

“Obviously, if I went to trial and had nothing, then it would be wasting everybody’s time and taxpayers’ money,” he said. “It was easy to basically take care of it.”

Bynum said he is pleased that the Court has finally resolved the case and is grateful that the legal system worked in his favor.

“For two years these allegations have been hanging over me, and at times they have interfered with my ability to do what I was elected to do,” Bynum said. “I can now answer the question I have been asked so many times. ‘Yes, I have always believed that this was all politically motivated.’ I think there are few who believe it was not.”

Bynum said he is grateful to the people of Kaua‘i who kept faith and encouraged him during difficult times. He feels blessed to live and work in a wonderful community.

He called the ordeal extraordinarily unfair and difficult for his family and said it reinforced his belief in asking tough questions and supporting open and responsive government.

“I pledge to continue to do my best as one of your Council members, including working to see that this kind of thing doesn’t happen to others,” he said. “I have a new appreciation for our civil rights.

“In this instance I have also been blessed to have Dan Hempey as my attorney, who has provided me with impeccable service above and beyond my expectations,” he added.

The Kaua‘i Office of the Prosecuting Attorney originally filed the zoning case against Bynum in December 2011. It moved to Circuit Court in January.

The case began when planning inspectors entered Bynum’s property on an anonymous tip that he was in violation of residential permit ordinances. Bynum was not home and the inspectors looked through windows and declared that a portable rice-cooker in his family room was a second kitchen violation.

Approximately 19 months later, the Office of the Prosecuting Attorney charged Bynum with four misdemeanor zoning charges.  

Minatoya said county witnesses would not testify that Bynum’s addition was a second kitchen as designed specifically for use in cooking and preparing food in violation of Section 8-1.5 of the Kaua‘i County Code.

There was not sufficient testimony to show that a live-in family friend who used the addition had placed Bynum in violation of the dwelling ordinance. The resident testified to using the main kitchen facilities, he said.

Testimony also lacked proof that a portion of the residence was being used by an individual or a group for exclusive residential occupancy of a housekeeping unit. There were allegations but no one had personal knowledge, Minatoya said.

“In my mind it’s clear, and whether I could prove that is the question, when a person is testifying that they used the same kitchen as everybody else,” he said.

The compliance inspections were in violation of regulations, according to Minatoya. It came down to whether there was valid permission for the compliance check.

The Kaua‘i OPA’s case stood on the inspectors saying Bynum had signed a user agreement that allowed spot checks, he said. A violation could result in losing the permit, but a court would not see that as reasonable for criminal prosecution.

“The permit was for the construction of the dwelling and that was already completed,” Minatoya said.

The second charge was assessed from a compliance check and that is basically another charge for the same offense, he said. The county was  asking for permission to ensure that a violation was remedied, saw something else and gave another notice basically for same offense, he said.

Hempey filed motions to suppress, dismiss, and to recuse the OPA in March. A former Kaua‘i prosecutor testified and Judge Watanabe summarily granted Hempey’s motion for recusal and disqualified the entire office, turning it over to the state Attorney General’s office in April.

Watanabe declared a conflict in the OPA’s case from “highly improper” and “compelling public interests.”

Minatoya is currently a Deputy Prosecuting Attorney for the Maui Prosecutor’s Office. He is currently the supervisor for the Appellate Asset, Forfeiture and Administrative Services Division.

He served as First Deputy Prosecuting attorney on Kaua‘i in 2005 before moving on to Maui in 2006. He is a Kaua‘i High School graduate and former County Council member.

Minatoya said he has a working knowledge of the County Comprehensive Zone Ordinances. He also served as a Deputy Corporate Council on zoning issues on Maui.

“I’ve worked those cases before,” he said.

In the interest of judicial economy, Minatoya entered a stipulated order to dismiss rather than wait to produce in person at what would have been the next hearing. Without judicial concerns, he held the decision for dismissal.

Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or tlaventure@thegardenisland.com.

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