Honolulu deputy prosecutor taken off opposing counsel’s case

The deputy prosecutor who admitted shoving his opposing counsel in a state courthouse hallway is no longer assigned to the case.

The Honolulu Department of the Prosecuting Attorney said in a written statement Monday that Deputy Prosecutor Emlyn Higa is no longer assigned to prosecute an attempted murder case involving a client of defense lawyer Myles Breiner.

“Higa was removed from the case after being charged with harassment. The Department of the Prosecuting Attorney must focus on this attempted murder case without distraction,” the department said.

Higa was second chair on the case.

His removal came after state Circuit Judge Paul B.K. Wong denied Breiner’s request to disqualify Higa. In a written order he filed Friday, Wong said that “the court must express its grave concerns that the conduct of counsel has diminished from the decorum befitting an ‘honorable and dignified profession’ to where criminal investigative reports and restraining orders are needed to establish how counsel conduct themselves vis-a-vis each other.”

But Wong said he cannot disqualify Higa because there is no evidence of a conflict of interest between Higa and the defendant even if his continued participation in the case might be unseemly, appear improper or reduce public confidence in the impartiality and integrity of the criminal justice system.

Breiner filed an assault complaint against Higa with state sheriff deputies following the Sept. 18 shoving incident. He also filed for a restraining order.

Honolulu District Judge Hilary Benson Gangnes handed down an injunction earlier this month that prohibits Higa from contacting, threatening or harassing Breiner for three years. The injunction also prohibits Higa from visiting Breiner’s home or workplace and orders Higa to stay at least 5 feet away from Breiner in the courtroom.

The state Attorney General’s Office on Wednesday filed a harassment charge against Higa. The crime is a petty misdemeanor punishable by up to 30 days in jail and a $1,000 fine.

Breiner maintains Higa should have been charged with misdemeanor assault, which is punishable by up to a year in jail and a $2,000 fine.

“I’m stunned at the complicity of the Prosecutor’s office and the Attorney General to protect Higa from the consequences every other citizen faces. This double standard undermines the integrity of our criminal justice system and sends a clear message that ‘justice’ for law enforcement is defined as ‘just us and none for you,’” he said.

Breiner says he has sent to the FBI’s Public Corruption Unit and the state Supreme Court’s Office of Disciplinary Counsel records of what he claims are hush money payments Higa made to the complaining witness in a domestic abuse case Higa handled when he was a deputy prosecutor on Maui, and emails between Higa and the complaining witness.