Could violations of secrecy invalidate an investigation into the Honolulu police chief, his wife and others?
The county’s top attorney is calling a federal grand jury into question. Honolulu Prosecutor Keith Kaneshiro, the boss of the chief’s wife, was called before the grand jury to testify this week.
Kaneshiro told Always Investigating the conduct of federal law enforcement and prosecution is appalling. He says it’s been a year-long “fishing expedition,” and questions what’s motivating the investigation.
As county prosecutor, Kaneshiro has to seek indictments from grand juries all the time and is no stranger to them.
But he calls strange the federal one that started last year, focused on Honolulu’s chief of police, Louis Kealoha, and his deputy prosecutor wife, Katherine. In just about every grand jury session, it has been known to the public who is being called to testify and even what they’re saying on the stand.
“I’m appalled by what’s going on in the federal grand jury,” Kaneshiro said. “It’s not only spiraled out of control, it is a circus. It’s is a parade… which is unfair, not impartial, and it defies all principles of justice in our criminal justice system.”
Kaneshiro says the special prosecutor assigned from San Diego has not ensured the upholding of a strict rule of secrecy. A spokesperson for that prosecutor, U.S. Attorney Michael Wheat, declined to comment about Kaneshiro’s concerns over secrecy.
Kaneshiro also criticized the conduct of Honolulu-based FBI agents who are assisting the visiting prosecutor with investigations.
“The concern is the FBI agents who are also here and may cause some tension in whether the FBI can really work impartially or fairly with our local law enforcement,” Kaneshiro said.
The FBI’s Honolulu spokesman was told of Kaneshiro’s remarks and declined to comment.
The investigation and grand jury have been going on for more than a year.
“It tells me that apparently they’re fishing. It’s a fishing expedition,” Kaneshiro said, “and there’s case law, federal case law, that says a grand jury should not be used for a fishing expedition. There’s a list of witnesses, all kind of people they’re calling, without showing relevancy of those witnesses.”
Witnesses ranging from police officers and high-ranking supervisors to Kaneshiro, the boss of Katherine Kealoha.
Always Investigating asked Kaneshiro: What about the public’s right to know about a case in which two very high-profile law enforcement individuals are at the center of something possibly done wrong?
“If that was the way we operate, then everybody who’s been investigated is going to be coming up for public scrutiny, and that is not the system of justice,” Kaneshiro said. “The system of justice is to protect those people, even though they’re investigated. If there is not enough evidence to indicate wrongdoing, then the people should not know about that investigation.”
Kaneshiro feels the duration of the grand jury shows they’re struggling to get an indictment on issues that have been brought up in other venues.
“Some people may not have testified (grand jury witnesses can assert their Fifth Amendment right not to testify), or may have testified contrary to what the grand jury is trying to obtain,” Kaneshiro said. “What’s taken before the grand jury, there was an ethics investigation (Honolulu Ethics Commission) and no finding of an ethical violation. There was a civil trial which a lot of these allegations were brought forth, and a civil jury ruled in favor of those people being investigated now.”
Always Investigating pointed out to Kaneshiro that a federal public defender asserts the evidence he turned over to the FBI for investigation was not a rehash of the ethics and civil case matters.
“If you believe the federal public defender,” Kaneshiro said. “How would he like it if all the people he represents would be publicly scrutinized during a grand jury investigation? He’s the very one who is talking to the media, a federal official who is talking about a federal grand jury process that is supposed to be secret.”
“Are you saying it’s possible that people who are bringing allegations against the Kealohas are doing so to undermine other cases?” Always Investigation asked.
“Look who is the biggest voice, a federal public defender who represents criminal defendants, isn’t that interesting? And all of a sudden, he has so much credibility,” Kaneshiro said. “Maybe his motivation is protecting his current clients. (‘In unrelated cases?’ Always Investigating asked.) Could be.”
Always Investigating asked, “Do you feel this investigation is intended to shut off high-level cases, and if so, will it?”
“There may be an attempt to try and shut off some investigations, because of the witnesses and what they say before the grand jury to taint Katherine Kealoha. (‘With other work she’s doing now?’) Yes.”
“What will happen to those cases?” Always Investigating asked.
“We will proceed,” Kaneshiro promised. “This office is bigger than one person.”
The federal public defender has not yet responded to our messages describing the prosecutor’s comments and requesting his response to the prosecutor’s remarks.
Kaneshiro said federal procedures allow grand juries to be brought under the supervision of a judge; grand juries are otherwise conducted at the lead only of the prosecution seeking indictments.
“Although the grand jury operates with great independence, the powers of the grand jury are not unlimited and are subject to the supervision of a judge,” Kaneshiro said. “Many cases have held that the judges can oversee what’s happening at grand jury, but it has to be brought to their attention.”
The clerk of the U.S. District Court in Hawaii declined to comment on what if any oversight they may exercise.
Kaneshiro said the matter may come to the attention of a judge in other ways.
“One way is a witness refuses to testify and therefore they have to give immunity to a witness, and how they give immunity is they have to take the witness before the judge and indicate why the witness should be given immunity to testify,” Kaneshiro explained. “The second way is the witness refuses to disclose evidence that is subpoenaed, and so if the grand jury wants that evidence, they have to take that witness before a judge to get the court to order that witness to disclose that piece of evidence.”
The Kealohas’ attorney, Myles Breiner, said many witnesses who are being subpoenaed are opting to stay silent.
“People are invoking their right because they don’t know what’s going on. They don’t know if they could be a target, and the problem too — and this is critical — they could be charged with lying to a federal officer, and the determination whether they’re lying or not is in the eye of the beholder,” Breiner said. “It puts a premium on, guess what, remaining silent.
“It’s a dog-and-pony show for public consumption,” Breiner added. “The only purpose behind it is to send a message to the possible targets ‘We’re coming after you.’ It is intended to threaten and intimidate. It’s intended to push people to the point that they’re afraid to say anything or go against the U.S. attorney.
“The substance of their testimony is being disclosed. The purpose of their testimony is being disclosed, and that’s not coming from the witnesses,” Breiner said. “That’s coming from the federal side, either out of the U.S. Attorney’s Office or out of the FBI office, and it’s inappropriate.”
“But when two people with such high-profile and important jobs as Katherine and Louis Kealoha are accused of something significant, doesn’t the public have the right to know that?” Always Investigating asked.
“The public has the right to know, however every defendant — this has to do with the constitutional rights of anyone who is the subject of an investigation — they have the right to privacy,” Breiner said. “They have the right to have a fair and impartial jury decide their fate. If you run this all in front of cameras and in the public sector, you eliminate their ability to get a fair and impartial panel, and virtually everyone coming for a jury selection process would have some knowledge or opinion of the truth or veracity of their allegation.”
If that’s so, what is the remedy?
“Dismiss the U.S. attorney, have him replaced. Dissolve the grand jury, because they’re tainted by the prejudicial conduct of the U.S. attorney and the FBI agents conducting the investigation. Also, have the U.S. attorney and the agents referred to the Office of the Inspector General, which is the internal affairs type of body inside the Department of Justice, to investigate prosecutorial misconduct,” Breiner replied.
“We are pursuing our investigation and will address that in the next several weeks with how we are going to proceed with this,” he said. “Our concern is the U.S. attorney is going to rush to judgment, get some type of indictment before we’ve had a chance to fully investigate some of the behavior, what we consider misconduct in the handling of this grand jury.”