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    August 2016
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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

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