Commentary – Former Prosecutor Damerville on Qualifications of Candidate Kagami (Sh*t Just Hit the Fan)

Rick Damerville

TO: Mike Kagami, Candidate for Hawaii County Prosecutor:

  1. You criticize Mr. (Mitch) Roth for what you imply are lenient plea deals. Yet in State v Joseph Amormino, it was you who plead the case down from attempted murder in the first degree and multiple other felony charges to assault in the first degree, two counts of terroistic threatening in the first degree, and use of a firearm in the commission of a felony. Defendant was a drunk with a gun who shot his ex-girlfriend 4 times and shot into the bathroom where the woman’s ex-husband was hiding in an effort to save his own life. Before trial, Mitch approved the plea offer to save the victim from the embarassment of having to testify at trial. But Amormino rejected the offer, the case went to trial and the victim had to testify. At that point there was no longer any reason for the pre trial offer. Yet you offered the same plea offer in the middle of trial without permission from Mitch. Every prosecutor knows that plea offers made before trial are no longer available once trial starts unless you get approval from the Chief Prosecutor or First Deputy. You left the office a short time later.

At the July 25, 2016 Malama O Puna Prosecutor Candidates forum in Pahoa (which was taped), you argued that the Amormino case was not truly an attempted murder case because the defendant shot his victim 4 times at close range – implying that if he intended to kill her, he would have killed her. Really, is this how you will analyze cases to “keep the community safe” ?

At the same forum, you said that according to National Prosecution Standards, you have to have proof beyond a reasonable doubt before charging a criminal case. You are wrong. National Prosecution Standards 4-2.2 states: “A prosecutor should file charges that he or she believes adequately encompass the accused’s criminal activity and which he or she believes can be substantiated by admissible evidence at trial.”

The related ABA Standard 3.43(a) states:

“A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that the admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interest of justice.”

These two standards are adequate and the standards of the profession. Your self-imposed higher standard will result in drawers full of cases that should be prosecuted but are not. Is this how you will protect the community ? Prosecutors know that the search for justice does not stop when the police turn over their reports. Investigations continue after charging, during trial, and sometimes after trial.

  1. Not all high profile cases are “tough cases.” In fact, many are easy cases because of the evidence. let’s look at some of your tough cases:
  • You take credit for the conviction in the Malaki McBride case. That case was reversed and is pending retrial because you failed to protect the record 3 times: (a) you failed to ensure that the jury instructions were correctly read to the jury, (b) you failed to ask that the written instructions be made a part of the record, and (c) you failed to ask for permission to supplement the record on appeal. I urge the public to read what is in the public record, particularly footnotes 8, 9, and 10 of the appellate opinion. There are no exceptions to the rule that everyone who does trial work makes mistakes. But when you screw up, own up.
  • Marwan Jackson case: The victim was brutally beaten to death. The Defendant was left to argue “accident.” More than one deputy prosecutor would have loved to have taken this to trial. But you were supervisor. So you got to pick this case for yourself.
  • Lito Mateo case: You were not lead counsel. Defendant shot his wife’s lover 18 times before numerous witnesses in a hotel parking lot at shift change in the afternoon. A tough case for the defense.
  • Richard Damien Serrano case: You were not lead counsel. The deputy, with now more than 30 years of trial experience, and who you now infer was too lenient for pleading down the Nakashima case, was lead counsel.
  • Van Kahumoku case: Really ? A tough case for the defense certainly. Police arrived on the scene. Defendant has a gun to his head and tells the police, “I think I wen kill the wrong guy. I think I wen kill an innocent guy.”
  • Alison Matsuda case: You listed this case in your ad as attempted murder. The jury came back assault in the first degree. Defendant poured acetone on a sleeping victim and tossed a lit match, engulfing the victim in flames. Defendant admitted to the police what he did. Another tough case for the defense.
  • Ryron Pia case: Defendant tried to rape a sleeping woman. When she awoke he stabbed her 2 times in the neck. When her boyfriend heard her screams and ran to help, he was stabbed. The Defendant admitted stabbing the victims.
  • Peter Bailey case: You take credit for this case even though it was reversed on appeal and had to be retried by other deputies years later.
  • Gary Vaughan case: You were not lead counsel.
  • Pierre Apisaloma case: Child sexual assault case. Good job on this one.

Summary: You listed 10 cases in your ad, 7 of which were easy on the facts and 2 of those were reversed on appeal and were either tried again by someone else or likely will be retried by someone else. Only 3 were truly “tough cases” and you were not lead counsel on 2 of them. If the above trial experience over a 22 year career is your selling point on why you should be the new prosecutor, most objective examiners of the record will reject your candidacy.

Why so few “tough cases”? Well maybe in the last 15 years there has been an acute shortage of “tough cases” or maybe the truly tough cases sat in your cold case files waiting for a better prosecutor, including homicide cases, like Jaylin Kema, Peter Kema, Patricia Wong, Alexander Gambsky, Daniel Dejarnette, and Xavier Cortez

As to the case results that you are so quick to criticize:

  • This year, victim Barton Bumatay was robbed, shot to death, and decapitated. Some alleged eyewitnesses with lengthy criminal histories came forward with statements. A defendant was arrested and charged. When all of the alleged witnesses invoked their Fifth Amendment rights, the case was dismissed without prejudice. The Prosecuting Attorney will sort it out and charges will be brought against the responsible parties.
  • Xavier Cortez case: This is one of your cold cases. When you got the case in 2011, you had two eyewitnesses and a favorable autopsy of the child victim. By the time your successor deputies got the case almost 3 years later, one eyewitness was gone. After the filing of the indictment, the remaining witness refused to cooperate and the autopsy opinion was weakened because it relied in part on the statements of now unavailable witnesses. Mr. Cortez was allowed to plead to assault in the first degree and was sentenced to 10 years in prison. Could a better result have been achieved had you charged the case in 2011? Probably. Unjustifiable delay has consequences. the victim and her family will see some justice rather than no justice at all. The plea agreement was appropriate.
  • Atkinson Nakashima, David Lester Bars, Paul Michael Gibson, and George Curnutt were all defendants initially charged with attempted murder, and all were allowed to plead to other felonies, mostly felony assaults and/or felony terroistic threatening. All were sent to prison. All of those plea agreements were made based on the recommendations of experienced deputies, some with more trial experience than you.
  • Finally, we come to the Alexander Gambsky case. This was a 2008 case that sat in your cold case files for years. You finally assigned it out to me for a second opinion. I concurred with your assessment that the case was not ready for trial but for a very different legal reason. I informed Mr. Roth that I was somewhat confident that because the defendant was known to be a drinker and a player, eventually he would give us a piece of testimonial evidence that we needed. I did not find that evidence. Other deputies in the office did. When there was no helpful forensic evidence establishing exactly how Dawn Gambsky was killed, allowing Alexander Gambsky to plead to manslaughter and the resulting 20 year prison term was appropriate.

Why this letter? I have been practicing criminal law for more than 34 years. I have been a defense attorney and have successfully defended individuals charged with everything from shoplifting through and including capital murder (State of Fla. versus Michael Gainey) before juries. As a deputy prosecutor and a deputy attorney general, I have successfully prosecuted charges ranging from misdemeanor assaults to tax evasion to murder. I have won my share and have lost some along the way. If you prosecute the cases that need to be prosecuted, that happens.

Everyone in this business, but not the public, knows that the number of jury trials or how long it has been since your last one, has virtually nothing to do with how well you will do as the chief prosecuting attorney.

The job of Prosecuting Attorney is to manage an office of 112 employees and a budget in the millions of dollars, oversee the prosecution of cases, try to find solutions for social problems, advocate for change, answer the complaints of the public when an employee is not measuring up to the standards expected of him or her, help to develop crime prevention solutions that work, and get the office, the police department and the community to work as a team – making sure that every victim is heard and treated fairly and every defendant is afforded his or her constitutional rights by an office whose employees maintain the highest professional and ethical standards.

I’m sorry Mr. Kagami, but Mitch is right. We can’t just end the lives of our juvenile offenders with the first mistake of their lives. We can’t just throw everyone in jail and throw away the key. We can and must be smarter about the business of prosecution. Our community and the safety and prosperity of our citizens depend on it.

The race for prosecutor will be decided in the primary election on August 13, 2016. Please vote and re-elect Mitch Roth Hawaii County Prosecutor.

Ricky R. Damerville

Hawaii DOTAX Release – July 2016 Preliminary Comparative Statement

One month into Hawaii’s fiscal year (FY) 2017, the cumulative general fund tax deposits are down by 2.2% compared with the same period in FY 2016.

General excise and use tax collections, the largest single category of tax collections, were $252.5 million in July, down by 0.6% compared to last July.  Individual income tax collections were $148.4 million in July, down by 2.8% from last July.

Transient accommodations tax collections were $40.7 million for the month, up by 13.2% from last July.

Click to enlarge

Click to enlarge

Lance Keawe Wilhelm Reappointed Kamehameha Schools Trustee

Probate Court Judge Derrick Chan today reappointed Kamehameha Schools Trustee Lance Wilhelm to serve a second term on the trustee board. Trustees Corbett Kalama, Micah Kāne and Robert Nobriga filed a response in court in support of the reappointment.

Newly reappointed Trustee Lance Wilhelm (left) considers it a blessing to work alongside his fellow trustees Corbett Kalama, Robert Nobriga and Micah Kāne. Wilhelm hopes to use his five-year 'window of opportunity' to make a positive impact on KS.

Newly reappointed Trustee Lance Wilhelm (left) considers it a blessing to work alongside his fellow trustees Corbett Kalama, Robert Nobriga and Micah Kāne. Wilhelm hopes to use his five-year ‘window of opportunity’ to make a positive impact on KS.

“Lance has brought a lot of knowledge and wisdom to our group,” says Kalama, Trustee chair. “He also brings to our organization a deep respect for the Hawaiian culture – especially in his ability to speak Hawaiian in a very humble, sensitive and meaningful manor.

“As trustees, we strive to be good representatives of Pauahi. Lance carries himself well. His behavior reinforces what we expect of our students and staff members, making him an excellent role model.”

KS trustees are appointed by the Probate Court in accordance with a process approved by the court in 2000. They may serve up to 10 years and are eligible to petition for reappointment at the end of their initial five-year term. Wilhelm hopes to make the most of his remaining time as trustee.

“I am deeply humbled by the support of my colleagues,” says Wilhelm. “I have the greatest respect for my fellow trustees and consider it one of the great blessings of my life to work alongside these remarkable individuals.

“As trustees of Kamehameha Schools, we come to our responsibilities knowing that our window of opportunity to make positive impacts to our organization is limited. I hope that within my window I can help to move us into our Strategic Plan with high energy and high confidence.”

Joining the KS trustees at Probate Court to witness the hearing was KS Chief Executive Officer Jack Wong.

“Judge Chan’s reappointment of Trustee Wilhelm today reflects the court’s acknowledgement that he has served KS well and has earned his second term as trustee,” says Wong. “I look forward to our continued work with Lance and the trustees as we build momentum around our Strategic Plan and strengthen our commitment to cultivating a thriving lāhui.”

Wilhelm is the managing principal for Irongate Capital, overseeing its current and future development operations in Hawai‘i including Ritz-Carlton Residences, Waikīkī Beach. He is also a board member for several nonprofit organizations including the YMCA of Honolulu, Island Pacific Academy, Hawai‘i Pacific University and the University of Hawai‘i Foundation.

After graduating from Kamehameha Schools Kapālama in 1983, he went on to earn a bachelor of arts degree in communications from the University of Hawai‘i at Mānoa.

Traffic Alert: Oceanic Time Warner Cable Utility Relocation Work at Nāpo‘opo Road

As part of the Nāpō‘opo‘o Road and Māmalahoa Highway Intersection Improvement Project, beginning on Monday, August 15, 2016, Oceanic Time Warner Cable will be relocating overhead cables to newly placed utility poles near the intersection of Māmalahoa Highway and Nāpo‘opo‘o Road in Kona.

One lane of Māmalahoa Highway will be closed to traffic from 9:00 a.m. to 3:00 p.m. throughout the week of August 15 through August 19 and August 22 through August 26, 2016.

Traffic control will be on site to assist with traffic flow and to assure the safety of motorists and pedestrians. Motorists are advised to expect delays and to drive with caution. Work is weather-permitting and is subject to change. Oceanic Time Warner Cable thanks the community for their patience and understanding.

If there are any questions or concerns, please call Wayne Iokepa at (808) 331-4919 or Barett Otani, County of Hawai‘i Department of Public Works Information and Education Specialist, at (808) 961-8787.

Hawaii’s Hokulea Crew Encounters New Sailing Conditions

Hokulea, Hawaii’s iconic voyaging canoe, encountered new sailing conditions on Thursday morning: thick fog that hovered above the ocean during the crew’s early morning sail from Salem, Massachusetts to Buzzards Bay, Massachusetts.

hokulea morning fog

The Hokulea crew had little to no visibility of the horizon during the first couple of hours of the sail – a rare weather situation for the worldwide voyage. Eventually, the fog cleared up at around 10:00 a.m. ET and Hokulea was back on track to her next destination: the Massachusetts Maritime Academy.

hokulea morning fog2

From there, the Hokulea crew will sail to Rhode Island early Friday morning, where the canoe will be docked for a few days. In line with delivering the Malama Honua Worldwide Voyage’s message of taking care of Island Earth by engaging with new communities they meet throughout the voyage, crew members will be conducting canoe tours for the public at Rhode Island this Saturday, from 11:00 a.m. – 4:00 p.m. ET.

Hokulea Morning fog3

The crew plans to continue educational engagements in the US New England states as Hokulea sails back down to New York.

Exhibit – Return of ‘Alalā: Restoring The Voice Of Hawaii’s Native Forests

Volcano Art Center is proud to present Return of ‘Alalā: Restoring The Voice Of Hawai`i’s Native Forests, a statewide multimedia art competition featuring Hawai`i’s endemic ‘Alalā.  The exhibit will be on display at Volcano Art Center Gallery in Hawai`i Volcanoes National Park from September 3rd to October 9th, 2016.

return of alalaProceeds from the exhibition support the reintroduction of this important species to Hawai`i’s native forests this fall.  The exhibit is open to the public and free of charge although park entrance fees apply.

“The response to this collaborative conservation effort has been terrific,” states Gallery Manager Emily C. Weiss.  “Hawai’i’s creative community has learned so much about this critically endangered species through outreach from the ‘Alalā Project and the Hawai`i Endangered Bird Conservation Program.

To date, VAC has received 47 entries. The artwork submitted reflects the artist’s knowledge of and affinity for this special species. Although the early bird registration just closed, the final registration deadline isn’t until August 19th.”

Details can be found at www.volcanoartcenter.org for those who still wish to participate.

For the first time ever, Volcano Art Center is hosting a preview exhibit.  Selected artworks from the Return Of ‘Alalā competition will be on display at the Volcano Art Center Gallery beginning at 9am on Saturday, August 27th in conjunction with the Cultural/Festival and BioBlitz hosted by Hawai’i Volcanoes National Park.

These select works will be available for presale purchase through a silent auction in an effort to raise funds to support the Hawai’i Endangered Bird Program and their long term project.  Bidding will commence at 9:00am on Saturday, August 27th and conclude at 6:45pm on Sunday, August 28th.

VAC welcomes anyone interested in supporting the event further to join in a special Hawaiian blessing by Kumu Kaho’okele Crabbe which will take place in front of Volcano Art Center Gallery on Sunday, August 28 beginning at 3:30pm.  Immediately following the blessing a reception will be held at The Volcano House Hotel directly across the street from VAC Gallery.

Live music by Keoki Kahumoku along with drinks and pupus will be available for ticket holders. Those interested in tickets can purchase them in person at VAC or online at volcanoartcenter.org for $50 each.  Proceeds from ticket sales go directly to support the ongoing ‘Alalā release project.  The evening events will end at VAC Gallery with desserts and the final bids for the artwork closing at 6:45pm.

“Please join Volcano Art Center in supporting this unique conservation effort. The ‘Alalā has been extinct in the wild since 2002, with your support we hope that will change,” states Weiss.   The public is reminded that entrance fees to Hawai`i Volcanoes National Park will be waived from August 25 – 28, in celebration of the National Park Service Birthday.

For more information, please contact Emily C. Weiss at (808) 967-7565.

California Man Identified in Wailuku River Drowning on the Big Island

A 41-year-old California man apparently drowned Wednesday (August 10) while swimming in the Wailuku River.

Waialae Falls
He has been identified as Alejandro Barrios Sr. of Orange, California.

In response to a 3:45 p.m. call reporting a drowning, South Hilo Patrol officers learned that Barrios has been swimming near the third waterfall of an area in the river accessible from the 2000 block of Waianuenue Avenue when he appeared to be in distress. His family attempted to assist him to shore but were unsuccessful and called 911.

Fire/rescue personnel located his lifeless body and extricated the man to shore with the use of a helicopter. Barrios was taken to Hilo Medical Center, where he was officially pronounced dead at 7:54 p.m.
Wainaku DrowningPolice have ordered an autopsy to determine the exact cause of death. The case is classified as a coroner’s inquest.

Hawaii Surf Legends Compete for Four Seasons Surfing Championship Trophy in the Maldives

Competition is underway at the Four Seasons Maldives Surfing Champions Trophy 2016 with Day One seeing competitors return to basics and hitting the water on single fin boards. Taj Burrow (AUS) took out the division in pumping 3 to 4-foot clean right-handers at Sultans.

Kauai Women's surfer Bethanny Hamilton is competing against the guys.

Kauai Women’s surfer Bethany Hamilton is competing against the guys.

Burrow, who had only just ridden a single fin for the first time yesterday put on an amazing show all day pulling into barrels and smashing vertical re-entries on the groomed walls of Sultans.

In the final, Burrow came up against former Pipe Master Rob Machado (USA). The two went blow for blow but it was Burrow who came out on top with a heat total of 14.94 (out of a possible 20).

“Surfing in a final on a single fin against Rob Machado is like a dream,” Burrow said. “That was just so much fun, the waves are sick and my board felt really good. It’s a bit bigger than what I’m used to but you could really push it through turns. I’m just having such a sick time here on Kuda Huraa, we’re all being so spoiled.”

Machado, who was surfing on a board he shaped himself, was a real standout. Surfing a single fin at a wave like Sultans on your backhand is no easy task, but Machado made light work of it posting high heat scores all day.

“That was so fun out there,” Machado said. “The conditions are so dreamy today. It’s been so sick to catch up with Shane (Dorian) and the rest of the crew especially here in paradise. It doesn’t get any better.”

Last year’s event Champion Shane Dorian (HAW) came up against childhood friend and single fin master Machado in Semifinal two. Dorian tucked into a number of barrels for a heat total of 15.34 to tie with Machado who won on a count back due to receiving the highest single wave score of the heat.

“Rob and I have been competing against each other since we were kids,” Dorian said. “We’re good friends so it was super chilled out there. Rob is surfing as good as he ever has so it was sick to share waves with him. It’s just such a pleasure to be back at this event.”

Semifinal one was an amazing duel between Taj Burrow and WSL Deputy Commissioner and former CT competitor Travis Logie (ZAF). Logie’s backhand was on point going vertical on critical sections to earn himself a heat total of 17.06. He was unable to overcome Burrow’s division high score of 18.44.

“They were the best waves I’ve had in a heat in over ten years,” Logie said. “Taj was just getting tubes and I was doing a million turns, it was so fun. It’s always great when you both get opportunities. The conditions are perfect for a single fin, just so good.”

Jamie O'Brien in Kona recently.

Jamie O’Brien in Kona recently.

In one of the slower heats of the morning, Hawaii’s Jamie O’Brien was unable to find an early score as the ocean went flat. As the heat progressed he began to develop momentum as the waves built. Left needing a 8.40, O’Brien took off on one of the better looking waves of the heat pulling into a long barrel across the inside section; unfortunately it was after the siren and O’Brien bowed out of the day’s competition.

“This is such a unique contest,” O’Brien said. “When a wave comes through and it’s your turn, it’s a real treat; this wave is so perfect. It was a real challenge to ride the single find, you have to take off a bunch of talent and just go with the feel of it. It’s really cool out there, everyone was super relaxed so it was really cool.”

Local Trials Winner Hussain ‘Iboo’ Areef (MDV) had to ask a friend if he could borrow a single fin as the young Maldivian had never ridden one before. His lack of experience did not show as the goofy footer nailed backhand hit after backhand hit. His heat total of 12.40 was not enough to move into the Semifinals so Areef will now set his sights on the twin fin division.

“Riding a single fin is really different,” Areef said. “You have to really slow everything down. It was so cool to see Travis, Jamie and Shane surfing up close; they were all ripping. I surf out at Sultans a lot and it can get really busy so having it with only four people out there was awesome.”

Single Fin Division Results:

Round 1 –
Heat 1: Taj Burrow (AUS) 15.67, Rob Machado (USA) 14.67, Bethany Hamilton (HAW) 13.56
Heat 2: Shane Dorian (HAW) 15.93, Travis Logie (ZAF) 14.33, Iboo Areef (MDV) 12.44, Jamie O’Brien (HAW) 7.86
Semifinals –
Heat 1: Taj Burrow (AUS) 18.44, Travis Logie (ZAF) 17.06
Heat 2: Rob Machado (USA) 15.34, Shane Dorian (HAW) 15.34
Final: Taj Burrow (AUS) 14.94, Rob Machado (USA) 14.00