Column: Probing Honolulu police shootings: releasing evidence now vs. fair trial

As the new Honolulu prosecuting attorney, I am committed to transparency and ensuring that defendants are both held accountable and have an impartial jury and a fair trial. I have heard calls for the immediate release of trial evidence, including police body-worn camera (BWC) footage, in the two recent officer-involved shootings in Nuuanu and on Kalakaua Avenue.

My office is conducting independent investigations of both cases. The results will be released to the public within the next 30 days. If we decide not to charge any police officers, I will publicly explain why not, and at that time, the BWC footage, 911 calls and police reports will be released. If we do decide to charge police officers, the evidence will also be released, some during the trial, and the remainder as soon as the trial in the case is concluded.

Why not release all the trial evidence, the BWC footage, now? The United States and Hawaii constitutions protect a defendant’s right to a fair trial and an impartial jury. That includes the right to a jury pool untainted by pretrial publicity. Those protections apply to everyone, including police officers.

All attorneys licensed in the state of Hawaii have taken an oath to support those constitutions. Our Supreme Court’s Hawaii Rules of Professional Conduct governing trial (and investigation) publicity prohibit prosecutors saying or doing anything which will be made public and which could prejudice a future court hearing.

Releasing BWC footage, when shown in the media, often accompanied by opinions by commentators based on less than all the information, may lead viewers to pre-judge the facts of the case. That would make jury selection and maintaining an impartial jury much more difficult. Thus, all the evidence, including BWC footage, will be released at one of two times, based on the potential need to assure police officer defendants a fair trial.

When the agency (Honolulu Police Department) involved in the shooting is investigating itself, it is always problematic. While HPD has good, experienced investigators, there will always be questions about their objectivity and any outcome of their investigation will be suspect for many.

I have said that, in an ideal world, officer-involved shootings would be investigated by an independent agency, staffed with prosecutors and investigators experienced in doing homicide cases and current with techniques and technology, not answerable to any other law enforcement or political entity. Unfortunately, such an agency does not exist in Hawaii and is nowhere on the horizon.

I have assigned teams to investigate both cases, led by division chiefs who have extensive experience doing homicide cases and are current on investigative techniques and technologies. Both state and federal expertise in our office will be utilized. Until such an independent agency is created in Hawaii, my office is the best place for these investigations.

This procedure of not releasing evidence prior to trial, is something I have followed since I became Honolulu prosecutor and was followed in the past successful federal investigations and prosecutions of, among others, United Public Workers’ Director Gary Rodrigues, HPD Sgt. Clyde Hayami, the Pali Golf Course shootings, and the Kealoha cases. In my 6½ years as the United States attorney and my 15 years as a Circuit Court judge, I always worked toward having a jury pool that was as untainted as possible as that is essential for a fair trial for both the defendant and the government.

I am aware there is great public interest in both cases. Given the expedited time frame I have outlined for decision-making, I would ask for everyone’s patience. A fair trial is such a fundamental right that a well-reasoned, but short, delay is appropriate. If any of us were charged with a crime, we would hope for the same fair treatment.

No one is above the law, including police officers. While there have been calls for the immediate release of trial evidence such as BWC footage for various reasons, everyone has the right to a fair trial where their words and actions are judged by the evidence, at trial, and not by anything else.

Steve Alm is prosecuting attorney for the City and County of Honolulu