Prosecutor defends program

LIHU‘E — An update on the Victim Witness Program requested by the Kaua‘i County Council to the Office of Prosecuting Attorney last week turned into a heated, four-hour discussion, marked by the recusal of one council member and repeated interruptions for discussions with attorneys.

The reason which prompted County Prosecutor Shaylene Iseri-Carvalho’s presentation Wednesday took center stage rather than her presentation’s content, which Iseri-Carvalho repeatedly said was old news. Council Vice Chair JoAnn Yukimura’s questions regarding funding often came back with answers intertwined with “already gave you” and “again.”

The Office of the Prosecuting Attorney hired victim witness counselor Erin Wilson in August and laid her off 78 days later. Wilson then contacted council members alleging Iseri-Carvalho caused a “tremendous backlog of cases” due to mismanagement.

Iseri-Carvalho called Wilson a “jilted employee” and said her accusations were a “thinly veiled political attack.” Her office’s current and former staff members backed Iseri-Carvalho with written and verbal testimony.

After Councilmembers Mel Rapozo and KipuKai Kuali‘i explained why they would not recuse themselves, Iseri-Carvalho said she had sent an email to all council members that morning requesting Councilman Tim Bynum’s recusal from the agenda item and any other matters related to her office.

Bynum, who is under prosecution on four alleged counts of zoning violations, recused himself.

At a council meeting back in May 2009, when Iseri-Carvalho had requested council approval to apply for federal grant monies and to use them for the Victims of Crime Act expansion program, Bynum wanted to discuss victim services and how they were impacted. He was denied by then-Council Chair Kaipo Asing.

On Jan. 4, the Office of Information Practices released an opinion in which it states Bynum’s questions back in 2009 would have related to whether other sources of funding for the Victims of Crime Act program existed so that grant monies did not need to be used for that program.

“We believe that the line of questioning would have been reasonably related to the agenda item and thus would not have violated the Sunshine Law,” OIP Acting Director Cathy Takase wrote in the memorandum.

On Wednesday, Bynum’s chance to speak was once again curtailed — this time by himself.

“Even though my attorneys advised me that I can still participate in this meeting, out of over-abundance of caution … I am not going to participate in today’s session,” Bynum said.

He does not want his recusal (withdrawal) to set a precedent, he added, because he believes the county prosecutor should be held accountable for her choices, just like every other department head.

“When concerns come to us as a council, and that are unsolicited, I think it’s our responsibility to follow through on the behalf of the people of the county,” he said.

Iseri-Carvalho’s request

Iseri-Carvalho’s email asking for Bynum’s recusal was initially marked confidential and sent to all council members but Bynum. At the meeting she said she was making it a public document.

In the document, Iseri-Carvalho states Bynum had an inappropriate confrontation with a female county deputy prosecutor, whose name was blacked out, or redacted.

The document states that on Sept. 28, as Bynum exited a court proceeding in which his son was being prosecuted for theft, he approached the deputy prosecutor and, with inappropriate language, asked if justice was done.

A copy of the document was obtained by The Garden Island.

The document also states that before being hired by the prosecutor’s office, the deputy prosecutor was repeatedly confronted by Bynum, who allegedly said he and Iseri-Carvalho did not “get along” and believed Iseri-Carvalho hired the deputy prosecutor to “get back at him.”

The name of the deputy prosecutor was redacted.

“Council member Bynum’s inappropriate confrontation with (redacted) regarding her employment at the OPA demonstrates Mr. Bynum’s continued undue bias toward me and my office,” Iseri-Carvalho states in the document.

She also gave a third reason to request Bynum’s recusal. On Nov. 9, her office filed a criminal complaint against Bynum, alleging four counts of zoning violations, which Iseri-Carvalho said are misdemeanors.

Conviction could mean a maximum of four years imprisonment and/or $8,000 in fines.

Because Bynum is being represented by a private attorney in the criminal complaint, and First Deputy Prosecutor Jake DelaPlane has represented the state of Hawai‘i, the prosecutor’s office is prohibited from having direct contact with Bynum.

Iseri-Carvalho said Bynum should not be allowed to participate in any council proceedings involving the prosecutor’s office, which would exclude him from some of the upcoming budget review sessions.

Bynum’s response

Bynum said Iseri-Carvalho’s letter misrepresents his conversations with two individuals who he has long respected. He said Iseri-Carvalho should be recused from prosecuting his case and allow the Attorney General’s office to properly evaluate the case.

“I believe that this would be the best assurance of a fair proceeding and a fair process that is certain to be governed by the rule of law,” he said.

Bynum said Iseri-Carvalho stated that her criminal prosecution is not personal; it is a routine matter “investigated by the (county) Planning Department and referred to our office for criminal prosecution.”

But Bynum said email correspondence from Iseri-Carvalho to former Planning Director Ian Costa shows otherwise.

“As early as April 2010, the prosecuting attorney asked the planning director in an email for a legal basis on which to prosecute me,” Bynum said.

The Garden Island also obtained a copy of that email.

In the email dated April 7, 2010, from Iseri-Carvalho to Costa, she states, “We received information to corroborate an anonymous complaint dated March 26, 2010, that was sent to the Planning Department and our office, that Councilmember Tim Bynum was renting out his house, or a portion thereof. Can you let me know if renting out a portion of his residence is illegal given his land status, and what ordinance/statute would he be violating by doing so? Please advise.”

On April 8, 2010, Costa emailed Iseri-Carvalho, responding that Bynum’s residence was permitted as a “single-family” dwelling based on one kitchen.

“If a second kitchen (area used for the preparation of food) is present, then a violation would exist for an illegal ‘multi-family’ dwelling unit,” Costa said in his email.

Bynum said the county Planning Department has assured him his house was properly permitted. He said he built a home addition — two bedrooms, a bathroom and a family room — to accommodate four generations of his family who lived at his home at different times.

His elderly father, he said, has a hard time walking up stairs to use the home’s second story, where the original bedrooms are located.

The addition also has a ramp so his father can get through the front door easily without stumbling on steps.

Bynum said the department told him everything was fine as long as no stove was installed. The addition is exactly as it was when the final inspection occurred; no cooking facilities were added, he said.

He said the investigation began when a trespasser looked into his window and saw a rice cooker and a refrigerator.

Status report

Meanwhile, regarding the council’s request to hear the status of the Victim Witness Program, Iseri-Carvalho repeated several times to the council that the information she was requested to give to the council had already been provided during last year’s budget review sessions.

She said her staff works 60-70 hours each week, and it is “quite insensitive” to have her staff tied up at a council meeting. “So we are going to go ahead and provide the information we already have provided,” she said.

Yukimura on Dec. 6 requested that Iseri-Carvalho provide an update on the status of the Victim Witness Program and her office as it relates to any case backlogs.

On Jan. 10, Wilson, the former employee, sent to all council members a three-page letter of testimony in which she accuses Iseri-Carvalho of mismanagement, among other things.

Council Chair Jay Furfaro said the council reserves the right to query any county department.

DelaPlane and Iseri-Carvalho listed a series of statistics, showing that during the past year, felony cases increased 19 percent,

district court cases increased 20 percent, juvenile cases decreased

7 percent and the percentage of conviction rates stayed above the 90 percent range.

They also said 543 circuit court cases were opened and 282 closed, with 1,672 cases still pending; 1,441 juvenile court cases were opened and 1,622 closed, with 2,447 cases still pending; and 3,233 district court cases (excluding traffic) were opened and 1,799 closed, with 8,885 cases still pending.

Other recusals

At the beginning of Wednesday’s meeting, Rapozo said someone had suggested he should recuse himself from the discussion.

“I do not believe I have a conflict (of interest) and I will not be recusing myself at this time,” said Rapozo, after explaining that the prosecutor’s office contracts his private investigation company by using grant money strictly for law enforcement. The grant funding source — the Edward Burns Memorial Justice Grant program — does not fund any part of the Victim Witness Program, he said.

 Iseri-Carvalho said she eliminated the Victim Witness Program three years ago and incorporated victim witness counselors into a vertical prosecution model. Counselors are now assigned to work under the direction of deputy prosecutors, who instead of being linked to a specific court, are now linked to specific cases from beginning to end.

Kuali‘i, who works for the YWCA, which is subcontracted by the prosecutor’s office, also stayed for the whole meeting.

He said the meeting was merely informational, and if decisions on grants were to be made, he would recuse himself.

• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.