Fifth Circuit Judge Kathleen Watanabe yesterday ordered vice officers to be deposed following allegations that prosecutors’ statements were conflicting regarding whether audio evidence existed in an October drug bust. Defense attorneys said, in their motion to collect depositions from police
Fifth Circuit Judge Kathleen Watanabe yesterday ordered vice officers to be deposed following allegations that prosecutors’ statements were conflicting regarding whether audio evidence existed in an October drug bust.
Defense attorneys said, in their motion to collect depositions from police and prosecutors, that they hadn’t been made aware of evidence that could have helped their clients’ cases and that when it was made available, it raised more questions than it provided answers.
Watanabe granted their motion to depose police but denied their motion to depose prosecutors.
Attorney Alfred Castillo and Dan Hempey, defending Lacilee Nobriga and Tiphany Boissiere, respectively, said in a joined motion authored by Castillo, that an Oct. 17 recording of the informant who later attempted to purchase from their clients was entered by police correctly into evidence; but that the details surrounding the existence of audio recordings of their own clients were sketchy at best.
The defense also claimed the informant was wired when she approached defendants Lacilee Nobriga and Tiphany Boissiere, both of Puhi, two times on Oct. 23, 2007. The first purchase attempt met with the defendants allegedly saying they had nothing to sell; neither recording, the defense claimed, was mentioned in the police report.
Castillo also stated in his motion that though prosecutors submitted the recording to the defense roughly two weeks ago, the first recording — the one he claims could help the defense because Nobriga and Boissiere say they have nothing to sell — was missing.
His motion continues that on Feb. 20, one of the prosecutors who had stated the informant wasn’t wired during the first meeting later said the informant was in fact wired, but that the device’s batteries were dead.
Prosecuting Attorney Craig De Costa said in open court yesterday the claims made against his employees aren’t factual, and asked Watanabe to put Castillo on the stand.
De Costa said he wanted to question Castillo regarding entrapment and previous cases in which tapes had been destroyed in the cases of Castillo’s previous clients.
Watanabe denied that motion, calling it “wholly inappropriate,” adding she wouldn’t jeopardize the attorney/client privilege held between Castillo and Nobriga.
Though De Costa also argued that under Rule 15, the defense shouldn’t be able to depose parties in a criminal case unless under special circumstances or in cases where witnesses might not be available, Watanabe said such circumstances are to be determined by the court.
Police Chief Darryl Perry said in an e-mail yesterday that there was no conspiracy or misconduct on the part of KPD officers.
“Essentially there was no recording during the first meeting because the battery in the digital recorder died,” Perry’s e-mail stated. “They were able to get new batteries for the subsequent meeting.”
The consolidated cases of Nobriga and Boissiere will begin trial on April 28, after both defendants yesterday agreed to waive their rights to a speedy trial by seven days under Rule 48.
• Amanda C. Gregg, assistant editor/staff writer, can be reached at 245-3681 (ext. 252) or agregg@kauaipubco.com.
