A state judge said Friday that he would have dismissed a 414-count gambling, money laundering and racketeering indictment involving the September 2012 police seizure of sweepstakes machines from arcades on Oahu because there were many problems with what the prosecutors told the grand jury to secure the indictment.
Circuit Judge Randal K.O. Lee said he found that the prosecutors who presented the case committed misconduct but that it was not egregious enough to prevent the state from pursuing a new indictment. He said, however, based on what the prosecutors have presented so far, he doubts the state would be able to get a new indictment.
In case it does, Lee said the deputy city prosecutors who presented the case to the grand jury, Jacob Delaplane and Katherine Kealoha, are disqualified from the case.
Honolulu Prosecutor Keith Kaneshiro says Lee is overstepping his authority. "It is inappropriate for the judge to disqualify the deputies. The hearing wasn’t about the qualifications of the deputies or about dismissal, but rather the reconsideration of the (dismissal) that Judge Lee had already granted," Kaneshiro said.
Lawyers for the nine defendants charged in the indictment had asked Lee to prohibit the state from pursuing a new indictment against their clients. They said their clients are disappointed with Lee’s ruling.
Lee said the prosecutors did not present the grand jurors with any evidence.
He said they did not show that people who used the machines won or lost money, that the machines Honolulu police seized are the same ones investigators had observed being used in the arcades or any evidence that the defendants profited from the machines including any bank records.
Lee said prosecutors presented no evidence that anyone had inspected the machines once they were seized to verify that they operate the way the government’s expert said they operate.
But what he said he found really appalling is that the prosecutors presented testimony suggesting to the grand jurors that state judges, including the one who empaneled them, had already determined that crimes had been committed so they should, too.
Kaneshiro said it was inappropriate and improper for Lee to comment on the grand-jury proceeding because that’s not what this week’s hearing was about.
At the prosecutor’s request, Lee dismissed the indictment last month without barring a new one. Delaplane, the lead prosecutor, said he found potential deficiencies in the indictment that he wanted to correct. He later said he also wanted to add more defendants.
He named just one potential deficiency in his request: that neither he nor former lead prosecutor Kealoha was aware during the grand jury session that lead defendant Tracy Yoshimura was not the owner of the arcades from where police had seized the machines. Kealoha had presented a witness who testified that Yoshimura owns the arcades.
During two days of testimony this week over whether Lee should bar a new indictment, Delaplane said he identified other potential deficiencies, including his presentation of a witness who testified that the machines are gambling devices without telling the grand jurors that a federal judge had prohibited the witness to testify as an expert on the machines in a related civil lawsuit. Delaplane said he was not aware at the time of the federal civil lawsuit or of the judge’s prohibition.
Lee said he found that hard to believe.
Defense lawyer Victor Bakke said since it was Honolulu Prosecutor Keith Kaneshiro who assigned Delaplane and Kealoha, wife of Honolulu Police Chief Louis Kealoha, to the case, he should be disqualified as well.
"Ms. Kealoha, she had a reason, she has a dog in the fight. Her husband is being sued (in the above mentioned civil case) in federal court," Bakke said, "And guess what, (Kaneshiro) puts a lackey in there who’s going to do what, follow orders, not ask questions."
Lee denied the request because he said it was not Kaneshiro who went in front of the grand jury.
Other defense lawyers asked Lee to impose sanctions on Delaplane and Kealoha for their misconduct. Lee told them that’s up to the professional disciplinary board for Hawaii lawyers.
