Attorneys representing three former city officials accused of defrauding the government by conspiring to pull together a $250,000 settlement for former Police Chief Louis Kealoha have until Monday to reach an agreement with federal prosecutors on how best to extract testimony from a key witness who is fighting cancer.
Nelson Koyanagi, former director of the city Department of Budget and Fiscal Services, has knowledge that the 2017 Kealoha settlement did not require City Council review and approval and was structured similar to settlements with other city department heads, defense attorneys declared in a motion filed in Honolulu federal court.
On Friday, U.S. District Judge Leslie E. Kobayashi instructed the attorneys representing former city Corporation Counsel Donna Leong, former Managing Director Roy Amemiya and former Honolulu Police Commission Chairman Max Sword to establish a process with Department of Justice to share evidence and ask questions of Koyanagi.
The judge said she will consider whether it is humane and in the interest of justice to permit questioning to move forward.
Leong’s attorney, Lynn Panagakos, filed a motion Jan. 27 to take a deposition of “a critical witness” to quickly secure Koyanagi’s testimony as soon as possible.
Amemiya’s attorney, Lyle Hosoda, along with Panagakos and Sword’s attorney, William McCorriston, shared well wishes and statements of support for Koyanagi and his family during Friday’s hearing.
“I hate being here with this motion. … Ms. Leong, her heart goes out to Mr. Koyanagi and his wife … but if he’s competent … we would welcome any alternative means to get his statements,” Panagakos said. “We believe his testimony is absolutely essential to getting a fair trial here.”
After securing a process agreement with DOJ on Monday, Koyanagi’s attorneys, Howard Luke and Richard Sing, will determine whether he is willing to review evidence, answer questions and possibly sign a declaration. Then Koyanagi’s doctors must determine whether he is physically capable of testifying and, if so, for how long.
Kobayashi said she would take the matter under advisement, and attorneys will report back by Friday.
“I’m looking at the humanity of this. This guy is at a certain point, and you guys subjecting him to 20 minutes of questioning by lawyers is just cruel,” she said. “The real thing is 20 minutes of questioning by lawyers that most individuals feel is cruel and unusual punishment in and of itself.”
Assistant U.S. Attorney Janaki Chopra, part of a team of out-of-state federal prosecutors led by Assistant U.S. Attorney Michael Wheat, said during Friday’s proceeding that DOJ shares the court’s concerns for Koyanagi.
Luke told the court he has attempted to speak with Koyanagi and could not get past “hello” or have a meaningful conversation with him.
Leong, Amemiya and Sword were indicted Dec. 16 and taken into custody by the FBI on Jan. 12. They were the latest arrests in an ongoing public corruption investigation by a special prosecutor that started with a complaint that Kealoha and his estranged wife, former city Deputy Prosecutor Katherine Kealoha, had their mailbox stolen.
Amemiya, Leong and Sword each entered a plea of not guilty and are free on $50,000 bonds. Their trial is scheduled for June 13 before Kobayashi.
The motion to depose Koyanagi was filed after Panagakos reviewed the first round of discovery documents turned over by Wheat’s team.
The DOJ team of prosecutors who are managing the ongoing investigation — Wheat, Joseph Orabona, Chopra, Colin McDonald and Andrew Chiang — did not immediately respond to a request for comment sent to Wheat and a spokeswoman.
Access to federal court proceedings during COVID- 19 also came up during Friday’s hearing. Kobayashi denied the Honolulu Star- Advertiser’s request to view the hearing by video feed.
Speaking in court, she said there is no law requiring video access to federal court proceedings, referencing the lack of camera access to the U.S. Supreme Court. Kobayashi called the request — made 13 hours and 37 minutes before the start of the proceeding — late and said it is up to the discretion of each federal judge to determine video access to proceedings during the COVID-19 restrictions.
“It is disruptive to the court to have a last-minute request. We do not have a courtwide policy,” she said.
Future requests for video access to any federal court proceeding must be made in writing in a letter to the court no later than 24 hours before the start of the hearing. Email requests will no longer be accepted, and it is likely that most requests for video access will be granted, Kobayashi said.
