The most sensational example of how Mayor Billy Kenoi used his county purchasing card never made it into the courtroom.
That was an $892 bill the mayor paid with his “pCard” at Club Evergreen, a hostess bar and restaurant in Honolulu, back on Dec. 4, 2013.
Nor did jurors ever get to hear about Kenoi’s use of county funds to buy a surfboard for $1,219 and a bicycle plus accessories for $1,889.
As his criminal trial culminated Tuesday in his acquittal on theft charges, some observers wondered why the mayor didn’t get hit with charges in connection with those headline-grabbing purchases.
The reason revolves around timing and intent, according to prosecutors and legal experts. Kenoi repaid those three bills to county taxpayers relatively quickly, making it harder to prove that he intended to steal the money.
“Criminal theft required evidence that Mayor Kenoi intended to permanently deprive the county of funds,” Attorney General Doug Chin said Tuesday regarding the choice of charges.
“For the criminal investigation we carefully reviewed every transaction and focused the indictment on transactions where reimbursements clearly did not occur until the press raised the issue.”
As it turned out, even proving those charges, many of them involving alcohol, was a daunting challenge despite the paper trail of receipts.
Ken Lawson, who teaches criminal law at the University of Hawaii Law School, said the verdict came as no surprise to him.
“It’s so hard to show specific intent,” Lawson said. “What the state really has to prove is not only did he take the state’s money and use it inappropriately, but his specific intent when he took it was to keep it.”
And then there was the personality factor. Winning a criminal trial requires appealing to a jury, and a bunch of paperwork doesn’t tug at jurors’ emotions the way a charismatic, popular mayor can.
“Most trials come down to who tells the best story with the evidence,” Lawson said. “When you have a personality like Billy going against paperwork from the state … as a juror I don’t feel nothing for the state, but I can like Billy.”
As a defense lawyer in those circumstances, “it’s easy for me to persuade a jury that my client has been treated unfairly,” he said.
The charges that were brought to trial involved $4,129 in purchases that the prosecution alleges were for personal use. For those purchases, the mayor waited as long as two years to repay the money.
By contrast, the mayor reimbursed the county for the hostess bar visit and the sports equipment more quickly.
Kenoi repaid the Club Evergreen tab in March 2014, three months after visiting the lounge. He bought the surfboard Oct. 29, 2011, and reimbursed the county in December. As for the bicycle, he repaid the charge to Bike Works in Kailua-Kona in April 2014, the month after the purchase.
Another $400 tab he had picked up with a county purchasing card at Camelot Restaurant &Lounge on Sept. 23, 2009, was canceled by the lounge the next day.
Sheryl Sunia, program chairwoman for the criminal justice program at Hawaii Pacific University, said it is tougher to prove criminal intent when there is a pattern of repayment.
“We always play Monday morning quarterback on the outside, because we watch the news and we talk to people and we get all the different sides,” Sunia said. “You have to look at what’s presented to those people that sat in that jury.”
She agreed that Kenoi’s popularity may have played a role in the jury’s decision.
“He’s very well liked, he knows everyone, he’s personable to everyone,” she said. “If you look at buying liquor for somebody, there is a liability, but a lot of people don’t see that.”
Dan Bent, former U.S. attorney for Hawaii, said prosecutors must make strategic decisions.
“The prosecutor has got to prove intent beyond a reasonable doubt, and that’s a high standard and it ought to be,” he said.
“Having been in a position like that, I know that you know a lot more than is ever out in the general public,” he said. “For people to second-guess you in that circumstance is most often not right.”
