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HomeMy WebLinkAboutCOM 0283.000 2004-2006 Page ] of 2 Kiriu, Connie From: Ashida, Lincoln Sent: Tuesday, May 17, 2005 5:59 PM To: Kiriu, Connie Cc: Rodillas, Martha Subject: De! Pranke issues PRIVILEGED AND CONFIDENTIAL COMMUNICATION A_ TTORNEY-CLIENT COMMUNICATION NOTA PUBLICRECORD May 17, 2005 Connie, As I understand it, a concerned citizen, Mr. Del Pranke, has expressed concern over (1) his belief that Deputy County Clerk William E. Smith lied to the Council at his confirmation hearing regarding Mr. Smith's involvement in a Simple Trespass case wherein Mr. Pranke was the charged defendant, and (2) his belief that he should have been afforded an opportunity to testify at a recent Council meeting concerning proposed minutes of a previous Council meeting. On the issue of Mr. Smith, I understand that Mr. Pranke alleges that Smith lied when he told the Council that he could not remember being involved in the prosecution of Pranke, wherein Pranke was charged with trespassing on property belonging to former Police Chief Wayne Carvalho. As it turns out, Smith, while doing District Court "calendar duty," appeared on behalf of the Office of the Prosecuting Attorney at the arraignment and plea. I understand Smith was not (1) the assigned prosecutor to this case, nor (2) the prosecutor who filed charges in this case. These are important points. One of fhe critical responsibilities of prosecutors is the decision to file charges in a case. This decision requires exerasing sound judgment in examining all the relevant facts and circumstances. Generally, the ABA standard which the Hawaii County Office of the Prosecuting Attorney subscribes, requires the prosecutor to have sufficient competent, admissible evidence to prove guilt beyond a reasonable doubt prior to filing charges. This differs from some jurisdictions which require a simple "probable cause" standard. I understand Deputy Prosecuting Attorney Tharrington Trusdell was the attorney who filed charges in this case, and not Smith. Further, Smith was not the assigned trial prosecutor in this case. As such, he was not charged with the responsibility of ascertaining whether the continued prosecution of this matter was prudent, pursuant to the criteria espoused above. Smith's function was nothing more than the "calendar deputy." As the calendar deputy, you simply appear on behalf of the Office of the Prosecuting Attorney and generally handle simple, non-adversarial matters such as arraignments and plea (as in Mr. Pranke's case), return on bench warrants, returns on mental examinations, and the like. Speaking from my experience as a prosecutor of 13 years in our County, you can handle virtually hundreds of these simple misdemeanor, petty misdemeanor, and violation cases in one day. You are not the "assigned prosecutor" charged with the charging o a responsibility, or the responsibility of seeking an adjudication of guilt through trial. In fact, as I recall, you Z ` were even limited in your ability to do "plea-bargaining on the courtroom steps" since you were not the ~ o° assigned attorney. In the Pranke case, Smith made no significant decisions concerning the course of the ~ prosecution, or anything that would impact Pranke's constitutional or other rights. Those decisions were V ~ ~ made previously (at charging) and subsequently (at final disposition, whether by plea, trial, dismissal, or otherwise). From my own experience, there were times when I was the calendar deputy, and a high school classmate 5/17/2005 Page 2 of 2 or other acquaintance of mine would appear in court for a simple matter (such as an arraignment and plea). Had I been the assigned prosecutor, I would clearly need to recuse myself. However, since my function would be to simply stand there while the defendant entered a plea (and write it down for the assigned prosecutor), there was no conflict, and my presence would be of no legal or ethical import. Thus, I would not disqualify myself from participation in this simple and speedy function. In Pranke's situation, I do not believe there were any adversarial matters litigated, such as bail, or other conditions of release. This, together with the reasons set forth above, clearly indicate Smith was not affiliated in any significant way with this prosecution. Thus, it is no surprise he had no independent recollection of being involved in this case. Simitariy, it is no surprise that Pranke remembers him. For a defendant charged with a crime, every court appearance is memorable. Further, for a layperson like Pranke, whe is unfamiliar with the Prosecuting Attorney's "calendar deputy' system, it would be understandable that he would mistakenly conclude Smith was the "assigned" prosecutor to his case. On the other issue of providing public testimony at Council meetings, you had informed me that it was the practice of the Council to allow members of the public at the end of meetingls to essentially offer testimony about "anything they wanted," even if the matter was not agendized. Frankly, I was surprised by this. I note the Council agendas simply state, "Statements from the Public/Adjournment" at the end. There is no indication that the public is allowed to testify on non-agendized items. Although I would check with OIP and defer to them, I do have concerns about such a practice violating the Sunshine Law. Assuming a member of the public (or perhaps even a lobbyist) offers testimony on "board business' (defined as matters which the Council is presently acting on, or is reasonably anticipated to act upon in the near future), the receipt of such testimony may violate state law. Although some would submit the Council could just sit there and not interact with the speaker, the more conservative course of action would be for the majority of members to leave the room, so no more than two members are left behind. Think of this example. A lobbyist for a controversial development waits until the end of a Council meeting, and the room clears out. He then seizes the opportunity to emphatically discuss the development, even if the matter is not agendized. He shares factual information that the Council members, even if there is no interaction, store in their memory, or otherwise use at a future meeting. This is exactty the situation the Sunshine Law seeks to avoid. That is why the law requires only agendized matters to be discussed, so there is no possibility of subterfuge of the open meetings law. I hope this input has been helpful. Please let me know if you would like to discuss any aspect of this further. Lincoln Lincoln S. T. Ashida Corporation Counsel County of Hawai' i Hilo Lagoon Centre, Suite 325 ] Ol Aupuni Street Hilo, Hawaii 96720 Tel. (808) 961-8304, ext. 118 FAX (808) 961-8622 E-mail: Lashida a c_o,h_awaii.hi.us 5/17/2005