© 2021. All rights reserved.
I love subpoenas. Specifically subpoenas that request documents. These types of subpoenas are called subpoena duces tecum, which means “under penalty you shall bring with you” the requested documents. But HPD? Not so much.
The process of obtaining a subpoena in federal court is not as easy and straightforward as it might appear. As an attorney for an “indigent” defendant, Gerard, I could not simply write up a subpoena, serve it and obtain any document I wanted on my own accord. Under the Federal Rules of Criminal Procedure, while an indigent defendant has the right to seek evidence, records and documents from third parties through the subpoena process, as a federal defender I was required to apply to a federal judge to obtain a subpoena. In doing so I had to demonstrate three things to the judge: first, that the documents existed and were in the possession of the person or entity I was subpoenaing. Second, that the documents would not be voluntarily turned over to me without a subpoena. Third, and most importantly, that the documents were relevant to my defense. The government and defendants represented by their own attorneys do not have to follow this procedure and can issue subpoenas without justifying them first to a judge. But on behalf of an indigent defendant, subpoenas were actually issued by and on the authority of a federal judge. All of this is done under seal; otherwise, the prosecutor would unfairly learn of our defense strategy. This entire process is irksome to prosecutors; while they can see that I am asking the court for a subpoena, they don’t know why or what specific documents I am seeking. They suspect I’m looking for something important to my defense and something perhaps they’ve overlooked, and they’re usually right.
In Gerard’s case, we served a number of subpoenas on Honolulu City and County agencies seeking information on the license plate numbers Gerard had given us of the vehicles he believed had been following him in the days before his arrest. We were hoping they would reveal that the vehicles belonged to HPD officers. They did. This subpoena endeavor was met with little resistance or pushback from City and County agencies.
After we served our eleventh subpoena on the custodian of records for HPD, however, HPD had had enough. On October 24, 2014, the City and County Corporation Counsel, on behalf of HPD, filed a motion to quash all eleven subpoenas we had served on HPD between September 5 through October 2, 2014. We didn’t believe for a moment that such a motion would have been filed without Louis’s knowledge and consent, as he was chief of police. Corporation Counsel argued that we were serving too many subpoenas on HPD and that HPD was being “harassed and burdened by [our] fishing expedition.” He further argued that our subpoenas sought “irrelevant and inadmissible” information and therefore were “unreasonable and oppressive.” Corporation Counsel concluded by stating that the “broad sweep of the documents, records, and information” we were seeking could “hardly be characterized as satisfying the ‘specificity’ requirement” we needed to show in order to justify our subpoenas, and that without this showing “HPD and the City will not agree to participate.”
While I wasn’t surprised that HPD was fighting back and didn’t want to produce the documents and records we were seeking, I was taken aback by Corporation Counsel’s statement that HPD and the City would “not agree to participate” unless they were satisfied that our subpoenas were legally sound. By its very nature, a subpoena is coercive. It is not voluntary. One does not have the right to decide whether one will or will not “participate.” More importantly, the City’s position seemed to suggest that it had no understanding in whose name and under whose authority the subpoenas had been issued in the first instance—a federal judge’s. We reckoned that when we appeared in court to argue the motion before the very same judge who had issued the subpoenas, this misunderstanding of the law would work in our favor. It was clear to us that HPD, and by extension the Kealohas, were trying to force us to expose our theory of defense by objecting to our subpoenas. That was not going to happen.
In fact, I had written detailed motions to the court explaining why each and every document I was seeking was relevant and material to our defense. But the actual subpoenas we served simply told HPD what documents I wanted and the date HPD was required to provide those documents to the court. HPD had the right to challenge the subpoena by filing a motion to quash if it believed the subpoenas were improper. But HPD did not have the right to know the underlying reason I wanted the documents. And refusing to “participate,” like little children refusing to play a game, was simply not an option.
I was also troubled by the timing of the motion to quash, because up to this point we had been attempting, through emails and phone calls, to amicably resolve issues that had arisen. Corporation Counsel had simply asked me for more time to gather documents, and I had agreed. I had not agreed to give them more time to file a motion to quash.
Initially, HPD had complied with several of our subpoenas. The problem was that they had redacted parts of the documents, like dates of birth, addresses and names of witnesses, or even locations of events. We were told this was being done pursuant to HPD’s own internal policies to keep certain information private. But often this was the very information we were seeking to uncover. If HPD wanted to black out information, they should have gone to the court, presented their case and clarified what was required of them. They didn’t. Rather, without permission, HPD simply blacked out information and then claimed they had complied with our subpoena. We had repeatedly informed Corporation Counsel that HPD was not in compliance with the subpoenas if any information was blacked out, but we were told in response that unless the subpoena specifically instructed HPD not to redact information, they were going to continue to abide by their own internal policy.
A second issue that came up was whom at HPD we were supposed to serve our subpoenas upon. We’d originally been instructed to serve them on HPD officer Sonny Roden, the custodian of records for HPD. He was the same individual we had served subpoenas on for HPD in all of our other cases in the past. But as we filed more subpoenas in Gerard’s case, Officer Roden began responding that he could not find any responsive documents in his one department. He claimed there were at least three other custodians of records for other departments within HPD and we would have to serve each of them independently every time we gave HPD a subpoena. We had never encountered this supposed “procedure” in the past. Such a requirement would be very cumbersome and time-consuming for us and could lead to HPD being able to claim, later, that documents did exist but we had just failed to serve the right custodian of records. We needed to know with certainty whether a document existed or not. And if it did, it had to be turned over. This new requirement seemed more like a shell game than anything legitimate.
Because we believed that HPD might deliberately hide documents from us, the subpoenas we issued also required that Officer Roden file an affidavit to the court if no documents were found in HPD’s possession. If HPD did hide documents, and we later discovered this fact, the affidavit would serve to severely undermine HPD’s credibility before the court and perhaps could lead to sanctions being imposed. But I also hoped that making Officer Roden file an affidavit would make HPD think twice before hiding documents. Initially, Officer Roden complied with this requirement. But as we served more subpoenas, he changed the wording of his affidavits and said he was only certifying that there were no documents in his one specific department. This was not acceptable. The filing of the motion to quash the subpoenas told me the gloves had finally come off. For both of us. Trial was fast approaching. HPD was stalling, and we were running out of time.
On November 12, 2014, after several not-so-friendly hearings, Judge Leslie Kobayashi, the judge who had been handling our subpoena requests and who would be our trial judge, ruled that our subpoenas were neither unreasonable nor oppressive and ordered HPD to provide unredacted documents. The court also ordered that our subpoenas did not have to be served on different custodians of records and that Officer Roden would be required to accept service and respond for the entire department. While this was a satisfying victory, the clock was ticking. We were now less than a month away from trial and we needed to see what was in those documents.
On Monday, December 1, one day before trial began, we finally obtained all the unredacted documents HPD claimed they had. In response to several of our subpoena requests, however, HPD claimed they could find no documents. But HPD was not done. On December 2, the first day of the trial, Corporation Counsel sent a letter to Judge Kobayashi stating that HPD had fully responded to our subpoenas and that because Officer Roden had filed an affidavit so stating, Officer Roden should not be required to appear as a witness. Apparently, Officer Roden had vacation plans, plans he had made even though he was aware he was going to be called as a defense witness. I objected. We’d subpoenaed Officer Roden specifically so we could put him on the witness stand to say that he had found no documents in response to several of our subpoenas. We intended to use his testimony to argue to the jury that documents HPD claimed did not exist were in fact required to have been generated by standard HPD policies and procedures. We’d previously obtained several of HPD’s operating procedures manuals regarding the preparation of police reports, and these specified who was required to prepare a report, when and how. We also knew, according to these manuals, that police reports or documents authorizing the allocation of City and County property, such as in the placement of cameras at the Kealoha residence, should exist. The fact that HPD was saying they didn’t exist simply didn’t jive with their own policies and procedures, and we had already learned that HPD were sticklers for following their own internal rules and procedures.
Specifically, we had asked for these pieces of evidence:
Any reports that Louis had reported shots being fired at his house.
Reports relating to deputy chief McCauley or Louis reporting the theft of the mailbox and referring it to CIU.
All documents stating when the surveillance cameras had been installed at the Kealoha residence and under whose authority and for what purpose.
The hard drive of the video surveillance footage or a longer version of the footage given to us.
And lastly, any and all CIU reports regarding any CIU involvement in the mailbox theft investigation.
According to HPD, none of these reports or pieces of physical evidence existed. Sometimes the failure to file a report can be as damning as having filed a false or incomplete report. The fact that HPD’s custodian of records had sworn in an affidavit and we presumed would swear again under oath on the witness stand that subpoenaed documents that should exist did not, only further supported our theory that Gerard was being framed. But in order to present this evidence to the jury, we needed Officer Roden as a witness. Judge Kobayashi agreed and denied the City’s request, ordering that Officer Roden be present to testify.
In the end, despite resistance, our subpoena efforts paid off. Through these protracted battles we had uncovered CIU officer Niall Silva’s altered chain of custody report—tangible proof that at least one HPD officer
had improperly altered a report. While we had found police reports that we could argue omitted critical evidence, and police reports that seemed to falsify evidence, shockingly we now had a report that had actually been altered, and we could prove it. And, even more importantly, HPD had hidden this document from federal prosecutors.
But HPD was not the only subpoena fight we had. Katherine was fighting us tooth and nail over the subpoenas we had issued for her medical and employment records. That fight was bitter, and when the district court finally ruled against her and in our favor, Katherine appealed to the Ninth Circuit Court of Appeals to prevent us from getting her records. We won that battle as well. But all of this took time, and the clock was ticking.
Katherine’s boss, Keith Kaneshiro, had also decided to enter the fray. Katherine’s employment records were located at the Honolulu Office of the Prosecuting Attorney. Brian, my investigator, went to serve our subpoena seeking her employment records early in the morning of June 3, 2014. He was met at the door by Vernon Branco, who was working as one of Keith Kaneshiro’s right-hand men. Branco not only refused to allow Brian to enter the office; he refused to accept the subpoena. This was a federal subpoena issued by a federal judge being served on a law enforcement office, and they were refusing to accept service. And it just wasn’t any office, it was the office of the prosecuting attorney, whose very job it was to uphold the rule of law and who themselves routinely issued subpoenas. And Branco, of all people, knew we had obtained the subpoena from a federal judge because he used to work in my office and had served subpoenas for us on numerous occasions. Kaneshiro’s refusal to accept service of a federal subpoena was unprecedented and, quite frankly, mindboggling.
I immediately called the US Marshals, explained the situation and asked that they serve the subpoena for us. A deputy marshal went to serve the subpoena. She had told me she did not expect any of the difficulties we’d run into. After all, she said, she was a US marshal serving a subpoena on a prosecuting attorney, people the US Marshals worked with on a daily basis. Surprise. At around 1:30 p.m. she called me and told me that she too had been refused entry into the office and that they had refused to accept service even from her. I could hear the shock and amazement in her voice. But I also heard anger. She informed me she was going to get two large male deputy marshals and they were going back and would serve the subpoena one way or another. While I enjoyed the image of US marshals breaking down the door to the City and County Prosecutor’s Office, I asked her to let me make some phone calls to see if I could work things out.
I called the office of the Corporation Counsel, who represented the prosecutor’s office in such matters, and explained the situation. I told them that they had until 3:00 p.m., about an hour from my phone call, to convince Kaneshiro to accept service of the subpoena or I was going to hold a press conference and disclose to the public that Kaneshiro, the City and County prosecutor, was refusing to accept lawful service of a subpoena issued by a federal judge by US marshals. Finally, fifteen minutes later, we were told that the US marshals could go ahead and now serve the subpoena.
In total, we’d obtained and served twenty-four subpoenas seeking documents in this case. Never before had so many subpoenas been issued in any one case by my office. Maybe we’d sought three or four subpoenas in a case before, but never twenty-four. We’d been persistent and won almost every battle that came our way. And we had struck gold. We found damning evidence that we could use to undermine Katherine’s credibility. We found a police report that was concrete evidence that at least one document had been improperly altered. We found that no reports existed when they should have. And we had tied vehicles Gerard claimed were following him to undercover police officers. It had all been worth the effort, time, energy and fight. And maybe, just maybe, in the future some doors would be opened just a little quicker when we came calling with a subpoena. If not, I knew a couple of US marshals who were eager to kick them open for us.
© 2021. All rights reserved.