Spear withdraws guilty plea

LIHU‘E — A judge agreed that a defendant may not have been presented with evidence before pleading guilty to felony charges and granted a new trial Wednesday in 5th Circuit Court.

Harold C. Spear III, a physician accused of illegally prescribing medications through his Hanapepe clinic in 2008 was granted a new trial on Sept. 17. He is currently serving 12 years on similar charges in federal court on O‘ahu.

Judge Kathleen N. A. Watanabe granted the motion to withdraw the plea after attorneys presented arguments concerning a digital compact disc. The CD contained testimony from former Spear employees at the time of the indictment in 2009.

Court-appointed defense attorney Charles Foster said the testimony contained exculpatory evidence to show that one of the three employees was a “rogue” and was possibly dispensing prescription medications without Spear’s knowledge or permission. He said this testimony was not made available to the defense prior to Spear’s guilty plea agreement on March 31, 2010.

Hawai‘i Deputy Attorney General Gary Senaga was present for the state. He said the CD was made available to the defense attorney at the time, Dean Edmund Acoba.

Senaga said Acoba contacted his office in 2009 to note that he could not extract the data from the CD. He was either supplied with a replacement CD, or walked through data extraction by IT personnel, but neither attorney could remember clearly, Senaga said.

The elements of the charges are based on Spear’s pre-signed prescriptions and other evidence that are still central to the charges, Senaga said.

Foster asked the court for to consider that had the information been made known to Spear at the time, it would have been influenced his decision in the plea deal.

The issue of the CD came to light in November 2011, when State Deputy Public Defender Stephanie Sato represented Spear for the sentencing phase in the state case. She was unable to open the files on the CD, according to Senaga, and contacted him for a replacement.

During the March sentencing hearing, Watanabe denied Sato’s motion to dismiss what she called a flawed indictment.

After reviewing court transcripts and video testimony, Watanabe said the court did not disagree with Sato’s claim of jurisdiction and foundation, but that on its merits, the indictment contained the essential elements for the grand jury to find probable cause.

At the April sentencing hearing, Sato entered the motion to withdraw Spear’s guilty plea. She then motioned to withdraw the Public Defenders office from the case for a conflict and the judge appointed Foster. Spear was arraigned in Circuit Court on March 17, 2009, and was to enter a change of plea on Jan. 13, 2010.

According to court records, Acoba asked the court to continue the matter until federal case  motions that would factor in the state case were resolved.

The new case will move forward on two counts of felony prohibited acts. Each charge has a maximum sentence of 5 years, but two felony charges make it possible for an extended sentence.

There is no mandatory minimum jail time.

Spear’s federal charges related to illegally dispensing Schedule III drugs in Alabama in 2008. He was tried in U.S. District Court in Honolulu, where Judge David A. Ezra sentenced him to 12 years and seven months in prison on March 1.

Wearing a white jumpsuit and walking with the aid of a cane, Spear greeted friends and supporters in the gallery during a lengthy bench conference.

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

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