The Hawaii Police Department and the state attorney general have come to an agreement regarding statements made by four HPD officers in an internal affairs investigation of alleged misconduct regarding events in May 2023.
Deputy Corporation Counsel Cody Frenz told Hilo Circuit Judge Peter Kubota on Friday that the investigation by the AG’s Special Investigation and Prosecution Division is focused on “two target officers and two witness officers in this particular case.”
Frenz said the witness officers have agreed that their statements in the internal affairs probe can be provided to the AG with “appropriate redactions, if any are required.”
“I won’t be indicating any case numbers or anything for confidentiality purposes,” she said.
Frenz added that the AG has agreed that the “compelled statements” by the target officers in the case will not have to be turned over by police.
None of the four officers were identified either in the Friday’s proceedings or publicly available court documents.
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.
Frenz, representing the police department, filed a motion in July to quash a subpoena by the AG seeking the internal investigation statements in its probe “focusing on offenses including perjury and tampering with physical evidence.”
Kubota heard arguments by Frenz and Deputy Attorney General Ben Rose in a hearing last month, and Kubota was scheduled to rule on the motion to quash had the parties not negotiated an agreement.
Frenz told the judge in that hearing that statements made by officers in internal affairs probes are privileged and cannot be used in subsequent criminal proceedings. In her motion to quash, she 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 State of Hawaii Organization of Police Officers, 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.
Rose countered in last month’s hearing 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.”
After Friday’s proceedings, Rose told the Tribune-Herald he is happy with the outcome and “really appreciates the county working with us on this matter.”
Frenz also is satisfied with the negotiated agreement, which she said recognizes “Hawaii County’s interest as the employer to protect its contractual obligations with its employees, pursuant to the Garrity advisement that they get for any sort of internal investigation.”
“But it also does not obstruct, and really it supports the attorney general’s need to flush out any potential criminal offenses by bad actors,” she concluded. “So it’s a good outcome that both supports the attorney general’s SIPD office’s directives, as well as abiding by the contract terms that the county has with SHOPO.”
Email John Burnett at jburnett@hawaiitribune-herald.com.