Kenoi trial requires massive jury pool

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Summons have been sent to 1,600 potential jurors for Mayor Billy Kenoi’s theft trial, which is scheduled to start Monday in Hilo.

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Summons have been sent to 1,600 potential jurors for Mayor Billy Kenoi’s theft trial, which is scheduled to start Monday in Hilo.

“That’s the highest number I’ve ever heard of, and I’ve done some high-profile cases,” said Ken Lawson, a faculty member of the University of Hawaii Richardson School of Law. “To have 1,600 potential jurors come in to the jury pool is an indication there’s an underlying belief that it’s going to be hard to seat a jury.”

State Judiciary spokeswoman Tammy Mori said typically 100-150 potential jurors are summoned for a trial with similar charges. She said if a case is high-profile, 300-500 jurors usually receive summons.

Mori said the jury pool for Kenoi’s trial will be divided into eight panels of approximately 200 potential jurors per panel. She said one panel will be called per day, and jury selection is scheduled to take about two weeks but could go longer.

“We want to ensure we have a fair and impartial jury,” Mori wrote in an email Wednesday.

The 1,600 prospects will be winnowed down to 12 jurors and four alternates.

A juror must be 18 or older, a U.S. citizen and Hawaii resident of the county where the trial is held, able to read, speak and understand English, with no felony convictions. The court randomly selects prospects from voter registration and driver’s license lists.

There has been constant statewide media interest in Kenoi’s case since the mayor was indicted in March on two felony theft charges, two misdemeanor theft charges, three counts of falsifying a government record and a single count of making a false statement under oath. The charges stem from Kenoi’s misuse of a county-issued credit card, known as a purchasing card or pCard, some of it for personal items.

The theft charges cover the time frame of 2011 to 2014, while the alleged false statement occurred on Feb. 6, 2015. The indictment followed a yearlong investigation by the state attorney general after Big Island newspapers reported Kenoi used the county card to pay tabs at hostess bars and for other personal purchases, such as a bicycle and surfboard. A county audit also found Kenoi misused the card.

“Keep in mind, that when you’re picking a jury, it’s not the fact that (jurors were exposed to) pretrial publicity,” Lawson said. “A juror can say, ‘I read everything that was printed in the newspaper about this case. I’ve seen every … story on the TV on this case. But I can be fair and impartial.’ If that’s true, then that person can sit on the jury despite the fact that they’ve been subjected to massive pretrial publicity.”

Some who received summons will be excused by the judge before their pool is called. Citizens can be excused beforehand if they are an elected official being asked to serve during the legislative session; a judge; a practicing physician or dentist; active-duty military or military personnel deployed out-of-state; police, fire or emergency medical services personnel; 80 or older; live more than 70 miles from the courthouse; or served on a jury in the previous year.

The prosecution and defense will have a limited number of so-called “peremptory challenges” — allowing the elimination of a prospective juror without a reason. Each side also will be able to challenge prospective jurors for “cause” — a perceived lack of impartiality.

Attorneys on both sides will ask prospects questions about their backgrounds and possible biases — a process called “voir dire” — to determine whether or not a potential juror is acceptable.

Lawson, who has an extensive background as a trial lawyer, said the prosecutors, Kevin Takata and Michelle Puu, deputy attorneys general, might ask potential jurors, “Have you ever had to punish someone that you truly care about?”

“If I’m the prosecutor, what I’m scared about the most is that you’re going to like Billy, and you’re going to acquit him because he’s a likeable person,” Lawson said. “Another fear is that there may be other people who used their pCard in an inappropriate manner, and we chose not to prosecute, and you’re going to use that as a reason to acquit even though he may have violated the law.

“Those are the things that scare me, so I will formulate questions based on that.”

Lawson said Kenoi’s attorneys, Todd Eddins and Richard Sing, should be concerned about prospective jurors who believe that, as mayor, Kenoi should be held to a higher standard than others.

“I would ask if it’s fair that an individual is being made an example of in the sense that there may have been other people who used their pCard in the same fashion but weren’t prosecuted,” he said. “I would also start talking about the level of intent. I’d ask, ‘Have you ever borrowed something from a family member or a friend without their permission with full intent to give it back at some other time?’ Has anybody done that or had it done to them? … ‘Do you have any problem if the judge says that that isn’t a theft? And what do you think about the publicity in this case and folks saying you should convict Billy?’”

Lawson said Kenoi’s attorneys also have a tough call as to whether or not the mayor testifies — which, either way, is his decision and his right under the Fifth Amendment of the U.S. Constitution.

“If (they) put him on the stand, people are going to say, ‘Hey, Billy’s lying to get out of these charges,’” Lawson said. “If (they) don’t put him on the stand, people are going to say, ‘If he’s innocent, he should have gone onto the stand and said so.’

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“All those things have to be talked about in voir dire because they’re going to come up.”

Email John Burnett at jburnett@hawaiitribune-herald.com.

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