Deputy prosecutor ordered to keep distance from defense lawyer

A state judge handed down an order Tuesday prohibiting a deputy prosecutor, who admits that he shoved defense lawyer Myles Breiner in a state courthouse hallway, from approaching or interacting with Breiner.

The injunction against harassment prohibits Deputy Prosecutor Emlyn Higa from contacting, threatening or harassing Breiner for three years.

“You could agree with me that it’s totally unacceptable, particularly for a prosecutor, to be physically assaulting opposing counsel in the hallway at court, that is just not acceptable,” Honolulu District Judge Hilary Benson Gangnes told Higa before issuing the injunction.

The order also prohibits Higa from visiting Breiner’s home or workplace. It does not, however, prevent Higa from handling criminal cases involving Breiner clients.

Breiner had asked for an injunction prohibiting Higa from being in the same courtroom as him.

Gangnes said she cannot do that because the courtroom is not Breiner’s place of work, it’s the court’s. She did, however, order Higa to stay at least five feet away from Breiner. Higa asked for two feet.

Before the Sept. 18 shoving incident, Higa was assigned to prosecute three cases involving Breiner clients. After the incident he told the judge in two of the cases that he was transferring to a different section and was handing off the cases to another deputy.

Higa transferred to the felony domestic violence section from the career criminal unit.

It was after a contentious hearing for the third case when Higa shoved Breiner in a third-floor hallway of the First Circuit Court building on Punchbowl Street. Higa remains assigned to that case even after Breiner asked to have him disqualified.

Gangnes told Higa that she’s puzzled why the judge in that case has to decide whether or not to disqualify him.

“Honestly, I don’t know why your boss isn’t automatically yanking you off the case,” she said.

Higa said acting Honolulu Prosecutor Dwight Nadamoto is not willing to bar him from any of Breiner’s cases and this case in particular, which is an attempted murder, “Because I probably have more experience in this kind of case.”

Higa is second chair on the case.

Breiner and Higa brought witnesses to court Tuesday expecting a hearing. One was not necessary because Higa agreed to the injunction.