In response to his arrest, Max Sword’s attorney stated that the former Honolulu Police Commission chairman was “shocked and disappointed” by the indictment, claiming that Sword was only following the recommendations of the Caldwell administration and the advice of Corporation Counsel, specifically Donna Leong.

Sword, through his attorney, also alleged that he agreed to the $250,000 payment to Kealoha only after having received advice from “interested parties,” including the City Council, Honolulu Police Department and the public. Sword’s position is problematic on several fronts.

First, who exactly, other than the Caldwell administration, did Sword rely upon for advice? In a letter to the City Council in January 2017, Sword outright told the City Council to flat out stay out of the matter, as Kealoha’s retirement was a “personnel” matter and solely within the province of the Police Commission to resolve. And, as reported by then-Police Commissioners Loretta Sheehan and Steven Levinson, despite questions voiced within the commission itself, Donna Leong and Max Sword informed them that it was a “done deal” and there would be no further negotiations. And despite objections, HPD’s voice was silenced as well.

Second, Sword’s position that he was simply acting as a soldier in response to the advice he received from Leong and her office raises the concern that Sword never truly understood, or for that matter believed, that even though the mayor has the sole authority to appoint commission members, the Police Commission is an independent body not beholden to the mayor or his/her administration.

Third, this type of belief — which clearly carried the day throughout the Louis and Katherine Kealoha matter and appears to continue to this day — strongly suggests that further reform is necessary to address who should appoint police commission members. As we have seen with the Caldwell administration, when trouble raises its head, it appears the mayor appeases public concerns by the appointment of one or two reform- minded commissioners, such as with the appointment of Sheehan and Levinson. So long as such reform-minded commissioners remain in the minority, however — a condition that mayors can assure — the majority of commissioners who seem to believe they serve at the pleasure of the mayor will ensure that no real and lasting reform will ever be undertaken by the police commission itself.

And fourth, in the short term, Sword’s apparent defense will create a significant problem for Leong and former city Managing Director Roy Amemiya in their upcoming federal trial. Sword’s position does not deny the facts that the federal prosecutors have alleged in the indictment, only that as far as he is concerned, he cannot be held legally responsible because he was instructed to do as he did. No illegal intent. Sword’s attorney did not claim in any manner that the facts alleged in the indictment were wrong, only outrage that his client’s reliance on the administration’s advice, as outlined in the indictment, should give rise to criminal charges against him. As such, Sword could become one of the prosecutor’s most important witnesses, even in his own defense. Winning a federal trial is hard enough for a defendant, but when one co-defendant is taking the position that the allegations are, in fact, true, but he alone has a legal excuse, it does not bode well for the co-defendants in that same case.

Sword’s words in defense of his actions should raise an alarm and cry out for public reform. The powers-that-be successfully prevented meaningful reform after the Kealoha convictions, but it appears the opportunity for reform has presented itself again.

Alexander Silvert is the former attorney for Gerard Puana, a key witness in the convictions of former deputy city prosecutor Katherine Kealoha (his niece) and former Police Chief Louis Kealoha.