A judge said he’ll decide next month whether to grant a motion by the Hawaii County Corporation Council to quash a subpoena by the state attorney general seeking statements made by four Hawaii Police Department officers an internal affairs investigation of alleged misconduct by those officers.
Hilo Circuit Judge Peter Kubota scheduled a hearing at 9:30 a.m. Sept. 19. He said there may be additional questions, but a decision will be made then.
Kubota told Deputy Corporation Counsel Cody Frenz and Deputy Attorney General Ben Rose they both “made very good arguments” and that he’ll “consider that in conjunction with your briefs.”
With HPD Officer Mark Arnold, business agent for the local chapter of the State of Hawaii Organization of Police Officers — the statewide police union — present in an almost empty courtroom gallery Tuesday morning, Frenz told the judge the statements made by officers in internal affairs probes are privileged and cannot be used in subsequent criminal proceedings.
In her motion to quash, Frenz argued the statements are protected by the Fifth Amendment of the U.S. Constitution, the state Constitution and the collective bargaining agreement between HPD and the SHOPO, as well as the 1967 case Garrity v. New Jersey, in which the U.S. Supreme Court held that public employees cannot be forced to choose between self-incrimination and job loss.
“The county has no intention of attempting to interfere with the attorney general’s investigation and prosecution of potential public corruption, as is their concern in this case,” Frenz argued. “We’re merely indicating that the county has contractual obligations, both to the officers through the SHOPO bargaining units, as well as the county has made express promises to not just these officers, but every officer that receives their Garrity rights at the outset of an internal investigation.
“And the county, as the employer, has a duty to uphold those promises.”
Rose said in his filings that the AG’s Special Investigation and Prosecution Division is investigating the four HPD officers for events allegedly occurring in May 2023, with its probe “focusing on offenses including perjury and tampering with physical evidence.”
According to evidence presented in court, HPD also conducted a criminal investigation into the officers’ alleged activities and forwarded their findings to county Prosecutor Kelden Waltjen, whose office deferred prosecution, citing a conflict of interest, and forwarded HPD’s criminal investigation to Attorney General Anne Lopez.
Rose argued that promises made to officers during collective bargaining “do not supersede the state’s ability to investigate criminal matters” and HPD’s “interest in maintaining a promise that they could never keep does not override the statutorily imposed duty on the attorney general.”
“All we’re seeking to do through this subpoena is to obtain copies of statements already made and records related to that investigation,” he said.
Kubota posed some pointed questions, almost all directed toward Rose.
“Why don’t you do interviews subject to people’s advice of rights and Miranda warnings? You have the full authority of the state of Hawaii to do that,” the judge said. “Why do you have to go through (the police’s) documents?”
“You’re right, Your Honor. We have the authority to do that,” Rose replied. “The authority goes beyond that, however. It also allows us … to issue subpoenas for these types of records, statements already made. … Because we are aware of these statements, the state is attempting to obtain these statements, and if a recorded statement was already made in the internal investigation that somehow conflicts with whatever statements are made to us for our investigation, that’s going to ultimately aid in our determination of whether to pursue charges at all.”
Kubota said filings by Rose “sliced and diced … the Garrity principle that any statements that are compelled cannot be used in a criminal proceeding.”
“And the way you slice and dice it, in my view, is that you’re saying, ‘Well, we’re not in a criminal proceeding yet, we’re investigating,” Kubota noted. “But you are investigating criminal conduct by certain officers. … And the fact you have not filed an indictment or gone to grand jury, gone to preliminary and all that doesn’t mean that this is not a criminal investigation. This is a criminal investigation.”
“Doesn’t the criminal proceeding start at investigation, at interviews?” Kubota queried.
“No it does not,” Rose answered. “It starts at the charging level, either by indictment, complaint or felony information.”
“Because we’re still in that investigation stage, and the law only prevents us from using compelled statements in a criminal proceeding, Garrity does not apply at this stage of the proceeding.”
Rose also argued that the county can’t exercise the Fifth Amendment in withholding the officers’ statements, because the rights conferred against self-incrimination are those of the individual officers.
“And what if the individual officers were to file something that exercises their Fifth Amendment rights? How does that change the analysis?” Kubota inquired.
“First, we don’t believe that they have the standing to file some kind of intervention in this matter,” Rose replied. “The subpoena is to the Hawaii Police Department, which has records. The officers may, at the end of the day, may not be charged and therefore, there is no injury, so to speak. They could, if they are charged, move to suppress the statements at that time. But at this stage, they don’t even have standing to file that kind of intervention.”
Frenz indicated that if the court doesn’t grant the county’s motion to quash, the county would seek to redact the compelled statements from the internal investigative files.
She also thinks the attorney general’s office should notify the affected officers and allow them or their legal counsel to object to the release of their compelled statements.
Email John Burnett at jburnett@hawaiitribune-herald.com.