Federal Public Defender Alexander Silvert, the lawyer of the man accused of stealing Honolulu Police Chief Louis Kealoha’s personal mailbox, says he is meeting with the FBI on Wednesday to discuss the Police Department’s conduct in the case.
"We believe there was false and manufactured evidence in this case, and that’s what we’ll be discussing," Silvert said.
He said it will be his first meeting with the FBI and declined to discuss the case further because of the possible FBI investigation.
An FBI spokesman said the agency will not have any comment on the case unless charges are filed.
The case was referred to the FBI by federal prosecutors last month.
Kealoha caused a mistrial Dec. 4 by commenting on the criminal history of the defendant, Gerard Puana, who is the uncle of Kealoha’s wife, Deputy Prosecutor Katherine Kealoha. Puana was on trial on a charge of mailbox theft, and prosecutors requested that the charge be dropped. A judge dismissed it with prejudice, which means the case cannot be reinstated.
Silvert said Kealoha intentionally caused the mistrial to help in a civil case Puana brought against Kealoha’s wife, which accuses her of stealing family money.
A recently released court transcript of the jury trial raises questions about how police investigated the case.
The transcript shows police lost the hard drive that held video surveillance of the theft in June 2013, and police didn’t retrieve video that offered a third perspective of the getaway vehicle.
Kealoha also offered a different version of how he reported the crime on the stand from what he told the Honolulu Star-Advertiser three months before the trial.
In a Sept. 27 Star-Advertiser story, Kealoha said he reported the stolen mailbox to Deputy Chief Marie McCauley, who turned the case over to the Honolulu Police Department’s Criminal Intelligence Unit. He said he doesn’t know what happened with the case after that.
In trial, however, Kealoha testified he was heading out to surf between 5:30 and 6 a.m. when he noticed the mailbox was missing and decided to wait until he returned home to report it.
He returned home about "maybe 9:30 that morning, and I told my wife what happened," he said.
He affirmed that she called police.
A federal prosecutor also said in trial that Kealoha’s wife called 911 to report the theft, and a patrol officer responded that morning to start an investigation.
According to the transcript, the officer who responded, Niall Silva, was a technician in the Criminal Intelligence Unit, which provides protection of the department.
He arrived at 8:59 a.m., according to his police report discussed in testimony.
However, Silvert said in court that according to police reports, the first report of the crime was at 1:30 p.m.
"Are you aware that Katherine Kealoha reported this crime for the first time at 1:30 in the afternoon?" he asked Silva.
"No, I wasn’t aware of that, sir," Silva said.
Kealoha could not be reached for a request for comment late Friday afternoon. A Police Department spokeswoman said the department had no comment because the case is a personal matter involving Kealoha’s wife.
‘Red flags’
University of Hawaii law faculty member Ken Lawson said the discrepancies in Kealoha’s testimony raise "all kinds of red flags" about police and the chief.
Lawson, a former defense attorney, said witnesses will misremember things but usually can recall when a crime was reported, how it was reported and who reported it.
"These are things that most witnesses or victims don’t forget," he said, and questioned why the chief would offer two different versions of how he reported the crime.
"Then when you look at the fact that the hard drive is missing, then you have to call into question was he really surfing," he said. "Maybe he was setting this guy up."
He also questioned how a police chief would make the mistake of commenting on a defendant’s criminal history, causing a mistrial.
"His whole credibility comes into question at this point," he said, adding that if he were the defense attorney, he would begin looking into whether Kealoha was really surfing.
Silva testified he was told to go to the house to recover the hard drive but had not been told why.
He said he wasn’t required to log down when he recovered the footage, but only the time he was assigned at 8:59 a.m. He said he logged down the time to create a chain of custody for the videotape.
He later said he improperly altered a form to change the number of copies he made of the video without creating a new form.
Furthermore, he also gave out copies of the video to officers without logging it down, he said.
Silva said when he recovered the hard drive, he removed it and inserted a blank one into the system.
While holding onto the hard drive for several days, he made copies from it and handed those copies out without logging the copies down and showed video from the drive to officer Bobby Nguyen, who is related to Kealoha through marriage and lived in the back of the Kealohas’ home at the time of the theft.
Silvert questioned whether it was improper for an officer to review a case he was personally involved in.
Silvert said in court that he requested the hard drive as evidence, but police said there was no hard drive.
Silvert referred in court to a picture of a feed from the six cameras on the property, including one that had a new angle of the getaway car.
Silva, however, said he did not record images of that camera for evidence.
Kealoha was the second witness in the jury trial on Dec. 4 when he commented on Puana’s criminal history, causing the mistrial because it introduced history that could prejudice the jury against the defendant.
He made the comment shortly after the judge mentioned the rule after Silvert objected that Kealoha might mention a prior bad act by Puana.
"I’m going to overrule the objection," Judge Leslie Kobayashi said, according to the testimony. "I’ll permit the questioning. But you’re (the prosecuting attorney) not to go into anything that — you know, because he is a police officer …"
Lawson, the UH faculty member, said Kealoha knew the rules of testifying before causing the mistrial. He said police work with prosecutors and are trained on what not to say so they will not blow convictions.
