NO. __________________

Electronically Filed
Supreme Court
SCPW-16-0000623
16-SEP-2016
03:51 PM

IN THE SUPREME COURT OF THE STATE OF HAWAII
LAWRENCE SUAN,

)
)
Petitioner,
)
)
v.
)
)
KEITH
KANESHIRO,
PROSECUTING)
ATTORNEY
)
)
HONOLULU POLICE COMMISSION ex. rel. )
RONALD I. TAKETA, CHAIRMAN,
)
)
HONOLULU POLICE DEPARTMENT ex. rel. )
CHIEF LOUIS KEALOHA, and
)
)
THE HONORABLE JAMES H. ASHFORD, )
)
Respondents.
)
)
)
)
)
)
)
)
)
)
)
_______________________________________ )

District Court Case No 1DTA-16-01849
ON PETITION FOR A WRIT OF
MANDAMUS AND/OR PROHIBITION TO
KEITH KANESHIRO, HONOLULU
POLICE COMMISSION, HONOLULU
POLICE DEPARTMENT, AND THE
HONORABLE JAMES H. ASHFORD
FROM THE ORDER ISSUED AUGUST 17,
2016, AND/OR RELIEF PURSUANT TO
ARTICLE VI, SECTION 7 OF THE
HAWAI‘I CONSTITUTION AND/OR
HAW. REV. STAT. § 602-4
DISTRICT COURT OF THE FIRST
CIRCUIT, HONOLULU DIVISION
THE HONORABLE JAMES H. ASHFORD
PETITION FOR A WRIT OF
MANDAMUS AND/OR PROHIBITION;
DECLARATION OF RICHARD L.
HOLCOMB; DECLARATION OF
KEVIN O’GRADY; DECLARATION OF
JONATHAN BURGE; EXHIBITS ONE
THROUGH TWENTY-THREE;
CERTIFICATE OF SERVICE

 PETITION FOR A WRIT OF MANDAMUS AND/OR PROHIBITION
AND/OR RELIEF PURSUANT TO ARTICLE VI, SECTION 7 OF
THE HAWAI‘I CONSTITUTION AND/OR HAW. REV. STAT. § 602-4
DECLARATION OF RICHARD L. HOLCOMB
DECLARATION OF KEVIN O’GRADY
DECLARATION OF JONATHAN BURGE
EXHIBITS ONE THROUGH TWENTY-THREE
CERTIFICATE OF SERVICE
RICHARD L. HOLCOMB 9177
Holcomb Law, LLLC
1136 Union Mall, Suite 808
Honolulu, HI 96813
Attorney for Petitioner Lawrence Suan

2

 NO. __________________
IN THE SUPREME COURT OF THE STATE OF HAWAII
LAWRENCE SUAN,

)
)
Petitioner,
)
)
v.
)
)
KEITH
KANESHIRO,
PROSECUTING)
ATTORNEY
)
)
HONOLULU POLICE COMMISSION ex. rel. )
RONALD I. TAKETA, CHAIRMAN,
)
)
HONOLULU POLICE DEPARTMENT ex. rel. )
CHIEF LOUIS KEALOHA, and
)
)
THE HONORABLE JAMES H. ASHFORD, )
)
Respondents.
)
)
_______________________________________ )

District Court Case No 1DTA-16-01849
PETITION FOR A WRIT OF MANDAMUS
AND/OR PROHIBITION AND/OR RELIEF
PURSUANT TO ARTICLE VI, SECTION 7
OF THE HAWAI‘I CONSTITUTION
AND/OR HAW. REV. STAT. § 602-4

PETITION FOR A WRIT OF MANDAMUS AND/OR PROHIBITION
AND/OR RELIEF PURSUANT TO ARTICLE VI, SECTION 7 OF
THE HAWAI‘I CONSTITUTION AND/OR HAW. REV. STAT. § 602-4

 TABLE OF CONTENTS
I.

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II.

ISSUES PRESENTED FOR REVIEW AND RELIEF SOUGHT . . . . . . . . . . 7

III.

REASONS FOR ISSUING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Prosecutors are required to investigate the existence of
impeachment materials, the duty may not be shifted to police
or bureaucrats, and impeachment materials consist of more
than information suggesting untruthfulness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. The HPD and the HPC have a duty to preserve these materials. . . . . . . . . 12

IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

DECLARATION OF RICHARD L. HOLCOMB
DECLARATION OF KEVIN O’GRADY
DECLARATION OF JONATHAN BURGE
EXHIBITS ONE THROUGH TWENTY-THREE
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES
Cases
Arizona v. Youngblood, 488 U.S. 51 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Giglio v. United States, 405 U.S. 150 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Honolulu Police Dep't v. Town, 122 Hawai‘i 204, 225 P.3d 646 (2010). . . . . . . . . . . . 11
Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10-11,
12
i

 McMahon v. Office of City and Cty. of Honolulu,
51 Haw. 589, 465 P.2d 549 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Napue v. Illinois, 360 U.S. 274 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Peer News, LLC v. City and County of Honolulu, et. al.,
138 Hawai‘i 53, 375 P.3d 1 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Reed v. City and County of Honolulu, 76 Haw. 219, 873 P.2d 98 (1994) . . . . . . . . . . . 9
State v. Matafeo, 71 Haw. 183, 787 P.2d 671 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State v. Peseti, 101 Haw. 172, 65 P.3d 119 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Peseti, 101 Hawai‘i 172, 182, 65 P.3d 119, 128 (2003)
Straub Clinic & Hosp. v. Kochi, 81 Hawai‘i 410, 917 P.2d 1284 (1996) . . . . . . . . . . . 8
United States v. Bagley, 473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Howell, 231 F.3d 615 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . .

10

Unreported Cases
State v. Simon, No. SCWC-11-00000107, 2013 WL 842507 (Feb. 27, 2013) . . . . . . . 5
Other Authority
Haw. Rev. Stat. § 52D-3.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12
HRPP, Rule 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

 I. STATEMENT OF FACTS
A. Background
On June 15, 2012, Officer Ryan Yamaato of the Honolulu Police Department was charged
with Tampering with a Government Record for allegations pertaining to falsifying an OVUII
police report. Exh. One ¶ 6. As stated in a letter from the prosecutor dated June 30, 2015, the
prosecutor “alleged that on or about May 8, 2011 Yamaato … prepared an Operating a Vehicle
Under the Influence of an Intoxicant report stating certain information that is in fact not true. …
On August 23, 2012 Yamaato entered a plea of no contest. His Motion for deferred acceptance of
no contest plea for six months was granted by the court. On February 8, 2013 the case was
dismissed for compliance …” Exh. One ¶ 6. In that case, defense counsel learned, not from the
prosecutor but from another attorney, that “Officer Yamaato may have been investigated and
charged with falsifying a police report.” Id. ¶ 4. The prosecutor did not know whether such
investigation had occurred and instead, “[d]efense counsel asked the court to order the prosecution
to investigate whether there were outstanding Brady materials on Yamaato that had not yet been
turned over to the defense.” Id. at ¶ 5. A week later, the June 30, 2015 letter was first produced
to defense counsel. Id. at ¶ 6. Even after this discovery, “the prosecution declined to provide the
materials” pertaining to Officer Yamaato’s plea of no contest for providing false information in an
OVUII report. Id. at p. 4, ¶ 9. Accordingly, almost three years after Officer Yamaato entered a
“No Contest” to falsifying a police report, more than three years after Respondent Kaneshiro
prosecuted Yamaato, and more than four years after commission of the alleged offense, the
prosecutor: 1) did not disclose impeachment materials; 2) had to be ordered to investigate the
existence of impeachment materials; and 3) despite the affirmative results of the investigation, the
prosecutor “declined” to provide the materials. Id. Notably, by the time of the June 30, 2015
disclosure following the ordered investigation, all records available to the public pertaining to
Officer Yamaato’s prosecution had been either sealed or destroyed. Id. at p. 4 ¶ 8; Exh. Two.
Nevertheless, between the time of his 2012 plea and the June 30, 2015 letter, Officer
Yamaato continued his traffic enforcement duties, even participating in OVUII arrests and
subsequent prosecutions. Decls. Kevin O’Grady; Jonathan Burge. Officer Yamaato continues to
serve in traffic enforcement, and is named in 99 such cases since June 7, 2016. Exh. Three.
Despite Respondent Kaneshiro’s prosecution of Officer Yamaato three years’ prior, the June 30,
2015 letter is the first time the undersigned or any defense lawyer known to the undersigned

 learned of this prosecution. See Exh. Four (Decl. ¶ 6); Decls. O’Grady and Burge. Even after
this revelation, prosecutors failed to investigate the existence of impeachment materials. Exh.
Four (Decl. ¶¶ 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 23). Prosecutors were not ordered to
investigate whether impeachment materials existed. See Exh. Five. Instead, defense counsel
through media coverage or courthouse gossip was required to somehow show the existence of
impeachment material before any such investigation was ordered. Yet, Respondent HPD reported
to the legislature that 58 officers were disciplined in 2015 for 58 separate incidents, including but
not limited to “Malicious Use of Physical Force … Mistreatment of Prisoners … Use of Drugs and
Narcotics … [and] Cowardice.”1 Exh. Six. Arrests of HPD officers have been so prevalent as to
suggest a “Culture of Corruption.” Exh. Seven. One of every six HPD officers (16%) are reported
to have been taken to court for civil or criminal wrongdoing. Exh. Eight.
Several lawyers began filing motions similar to Exhibit Four. Burge, O’Grady Decls. Most
District Court judges, including Respondent Ashford, now recognize that prosecutors have a duty
to investigate whether impeachment material exists, and if so, to disclose the materials to the
defense. See Exh. Nine, pp. 1, 7-8. In some cases, the prosecution is ordered to write the Honolulu
Police Commission (“HPC”) and the Professional Standards Division of the Honolulu Police
Department (“HPD”) to inquire whether impeachment materials exist. Decls. When ordered, the
prosecutor writes the HPC and HPD to inquire whether such materials exist, and define the scope
of the materials sought much more narrowly than the scope to which Defendants are entitled. Exh.
Ten. Relying solely on the HPC or HPD analysis of materials,2 prosecutors never even view
potential impeachment materials even after the HPC and/or HPD confirms that such evidence does
exist. Instead, those records are subpoenaed at the cost of the Defendant and produced to the court
in a sealed envelope for in camera review without review by either party.
No orders to investigate (known to the undersigned) have been issued recently in Honolulu
District Court. Instead, as in this case, the prosecutor informs the judge that previously ordered
letters to the HPC and HPD resulted in a negative response in a different case, the judge asks the
prosecutor whether the prosecution has any impeachment materials which have not been disclosed,
1

None of the disciplined officers are identified in that report, see Peer News, LLC v. City and
County of Honolulu, et. al., 138 Hawai‘i 53, 375 P.3d 1 (2016).
In responding to this motion, prosecutors have reported conducting an “intra-office” search to
determine whether they prosecuted the police officer, although they have also disavowed any
knowledge of a “Brady” file or database. When ordered, they conduct a NCIC background search.
2

2

 asks the defense if the defense is aware of any such materials, and the motion is denied. Exh,
Nine, p. 7. Prosecutors admit that no investigation occurs if the motion is denied. Exh. Five.
Even when ordered, these “investigations” are dubious and ineffective. The existing
prosecutorial practices paint a troubling picture for a number of reasons, including: 1) the HPD
and HPC refuse to provide prosecutors with files which would allow prosecutors to fulfill duties
imposed on them by virtue of Defendants’ constitutional rights; 2) prosecutors are shifting their
burden of investigation to non-lawyer bureaucrats and even police officers, willfully leaving the
foxes to guard the henhouse; and 3) prosecutors never even view the files. There are no known
standards employed by the non-lawyer commissioners at HPC to determine whether impeachment
materials exist, Exh. Eleven (other than newly appointed Commissioner Sheehan, commissioners
have no legal or law enforcement background, no ethical obligation under HRPC Rule 3.8), and
certainly a police officer at HPD should not be left to determine what information a criminal
defendant should receive, particularly without a clear and cogent policy pertaining to both
disciplinary action and disclosure. See Exh. Twelve (“there is no clear policy on when an officer’s
police powers should be removed because of an ongoing investigation” and officers are restricted
of their police authority when “[Respondent Kealoha] feel[s] they can’t go on duty.”). Moreover,
prosecutors have specifically instructed the HPC and HPD that if, by whatever unknown means, it
was determined that potential impeachment information did not pertain to untruthfulness, false
reporting or credibility, the agencies were to report that no impeachment materials exist. Exh.
Nine, p. 10 (the same letter attached as Exhibit Two to Petitioner’s Reply, infra.); Exh. Ten.
This is particularly disconcerting where the records of impeachment materials to which
Defendants are constitutionally entitled will have been destroyed before an appellate court can
decide this case. Misconduct resulting in suspension or discharge is included in the annual report,
see Exh. Six, and is statutorily required to be retained for 18 months after the annual report. Haw.
Rev. Stat. § 52D-3.5. The City’s Records Retention Schedule for Internal Investigation Reports
and Honolulu Police Commission Reports and Dispositions requires that “sustained” cases be
“retained for the period necessary to complete the departmental disciplinary process …” Exh.
Thirteen. “Unsustained” cases may be destroyed immediately. Id. The HPC reports, in response

3

 to ordered prosecutorial inquiries, that records are maintained for 30 months.3 Exh. Fourteen.
Even complaints that result in suspension or discharge will be destroyed before final appellate
resolution of this case is expected.

Differentiating between sustained and “unsustained”

allegations differently is also troubling. Now, the HPC, having previously confirmed the existence
of impeachment materials in response to ordered prosecutorial inquiries, refuses to provide those
documents when subpoenaed pursuant to a court order.4 Decls. Holcomb, O’Grady.
Further, according to documents filed in federal court, supported by 37 documents (213
pages) that are currently sealed, Exh. Fifteen, p. 4, when the City feared liability for police
misconduct (including calling minority police officers racial slurs and retaliation by ordering that
backup be denied to those officers), the HPD was instructed by city attorneys to reconsider the
discipline that the HPD had previously recommended. Exh. Sixteen, Complaint.5 Is this an

3

On September 14, 2016, in a separate case where the HPC affirmed that impeachment materials
existed for a particular officer in response to a prosecutor’s inquiry only to change its mind and
produce no documents pursuant to a subpoena previously ordered by Respondent Ashford, Deputy
Corporation Counsel Sarah Casken appeared in Honolulu District Court, in lieu of the subpoenaed
custodian of records, and informed the Court that the HPC’s Record Retention Policy requires
preservation of records for 30 months. When asked by the Honorable Melanie M. May the date
from which the 30-month period begins to run, Ms. Casken could not answer. Ms. Casken was
ordered to provide the undersigned with the current HPC record retention policy on October 20.
circumstances underscore the need for this Court’s intervention as not only are HPC
bureaucrats permitted to exclusively evaluate whether information should be disclosed, they
routinely “change their mind” and/or report that the HPC “cannot locate” documents at issue. See
Exh. Fourteen. In the September 14 case, for example, Ms. Casken stated that she (a lawyer
representing the HPC and the HPD’s interests, see HRPC, Rule 1.7(a)) suggested that because the
HPC had found the complaint was “unsustained,” the materials should be exempt from review for
impeachment value. Holcomb Decl,; see also O’Grady Decl. Remarkably, even where Ms.
Casken has stated in court that she has not personally reviewed the materials, District Court judges
are now holding that the materials need not be produced for in camera review where the HPC has
purportedly “changed their mind” and themselves extra-judicially decided that the materials should
not be disclosed to defendants. O’Grady Decl. It is difficult to fathom a circumstance in which
even “unsustained” allegations would not be disclosed considering the HPC’s own Complaint
Classification Guidelines. See Exh. Seventeen, pp. 11-13.
4

These

5

This Complaint stemmed from a separate case that the City recently settled for $4.7 million in
taxpayer dollars. The allegations in Exh. Sixteen were first raised in a request for leave to file a
Fourth Amended Complaint in the first case. Although many of the documents are sealed, a
Ramseyer formatted copy of the proposed Fourth Amended Complaint was filed as an exhibit to
Plaintiffs’ response to Defendants’ Motion to Dismiss. Exh. Eighteen. The case was dismissed,
4

 “unsustained” case?

Respondent Kaneshiro cannot answer that question due to a lack of

investigation. This abject failure to investigate appears unique to Honolulu. O’Grady Decl.
B. Procedural History
On June 27, 2016, in compliance with HRDC, Rule 33(a), Petitioner Suan sent an informal
discovery request to Respondent Kaneshiro, requesting information pertaining to the State’s
witnesses, and specifically impeachment materials: criminal records; personnel files; misconduct
or alleged misconduct; any disciplinary action, suspension or reprimands; findings that an officer
was not credible; accusations of submitting false information and/or duplicating allegations;
findings that of constitutional violations; action or review by a court or prosecuting agency based
on false statement(s); abuse of power; periodic reviews and assessments of officers; counseling
statements or documents; evaluation or fitness reports; complaints or allegations of misconduct;
disciplinary reports; adverse administrative actions taken against any officer involved; and any
other impeachment material required by Brady, Giglio, Henthorn or Milke, their progenies or
predecessors. Exh. Nineteen ¶¶ 11-13. Petitioner requested that the prosecutor “actually fulfill its
prosecutorial duties to investigate this case before representing to the Court the evidence does not
exist; should not be disclosed; and/or is not material to Defendant’s guilt or sentencing.” Id. ¶ 6.
In compliance with HRPP, Rule 12 and HRDC, Rules 7, 8 and 33, Mr. Suan also timely
filed “Defendant’s Specific Brady Request No. 1.”6 Exh. Four. There, based on much of the
anecdotal evidence discussed above, Mr. Suan requested disclosure of essentially the same
information listed in Paragraph 12 of the Informal Discovery Request and:

not because the allegations lacked merit, but because those allegations should have been brought
in the first case. Exh. Fifteen. Plaintiffs have appealed that ruling.
6

Among other motions, Mr. Suan also filed a Motion to Suppress. Exh. Twenty. This Motion,
as well as Mr. Suan’s defense, challenges reasonable suspicion to effectuate a traffic stop, the
prolonged detention, voluntariness of participation in and/or inadequacy of the field sobriety tests
and/or chemical testing, and probable cause to arrest. Id. In a jurisdiction where police resist any
efforts to require body cameras or any other practical means to provide objective evidence of what
truly happened during interactions with citizens, not only is impeachment evidence pertaining to
the witnesses’ honesty obviously material, but also evidence pertaining to complaints of abuse of
power, deficient training or performance, and other issues also should be disclosed. See State v.
Simon, No. SCWC-11-00000107, 2013 WL 842507, at *5 (Feb. 27, 2013) (attached as Exh.
Twenty-One) (J. Acoba, Pollack dissenting) (opining that this Court should review disclosure of
radar gun manuals because “if the radar gun reading was incorrect or the reading was taken
improperly, the officer would lack probable cause, and the basis for the stop would be invalid.”).
5

 that [the District] Court require the government to comply with its Brady
obligations, beginning with responding specifically to the specific Brady requests
previously made, detailing by Declaration the due diligence it has exercised in
seeking out the requested information and promptly providing information once
collected and the reasons it believes it need not attempt to locate the requested items
as part of its duties under Brady and its progeny. See United States v. Agurs, 427
U.S. 97, 106 (1976), holding modified by United States v. Bagley, 473 U.S. 667
(1985) (“[w]hen the prosecutor receives a specific and relevant request, the failure
to make any response is seldom, if ever, excusable.”).
In the unprecedented event that the government does obtain the requested items but
refuses to disclose the information to defense counsel, Defendant requests that this
Court require the government to file the information with this Court in camera.
Upon in camera review, Defendant requests this Court disclose any and all
information to which Defendant is entitled, and that all of the information produced
to the Court in camera be entered into the record for the purpose of appellate
review.
Exh. Four, p. 2.
On August 14, 2016, the State “cut and paste” its response to this motion, Exh. Nine, p. 2,
and argued: 1) that it was not bound by Ninth Circuit precedent; 2) relying solely on the Second
and Sixth Circuits, that the prosecutor’s Brady obligations only apply after a conviction; and 3)
Defendants must somehow show materiality and reasonableness of disclosure of the materials (that
absent the requested investigation, Defendants have no way of knowing exist) before disclosure
can be compelled. Exh. Twenty-Two, pp. 2-7.
On August 16, 2016, Mr. Suan filed his Reply. Exh. Twenty-Three. Mr. Suan raised the
same arguments as raised here, including but not limited to: prosecutors are relying on non-lawyer
bureaucrats to conduct the investigation that individual prosecutors are constitutionally required
to conduct; prosecutors are impermissibly narrowing the scope of inquiries to the HPC and HPD
and, in fact, instructing those agencies to inform the court that no materials exist; that if the court
did not order the investigation, prosecutors do not perform the investigation; and before any
appellate decision could be reasonably expected, the records would be destroyed pursuant to the
retention schedule counsel had recently obtained. Id.; Exh. Nine.
Nevertheless, the Motion was denied because, in a separate case, the prosecutor had
obtained a negative response to a letter to the HPC and HPD using “the same language … attached
as Exhibit Two to [Mr. Suan’s] Reply,” which states:
Defense attorney Richard Holcomb has made requests for a number of materials in
the above-titled case. Pursuant to obligations imposed by law, I am required to
6

 make diligent good faith efforts to cause such material to be made available to
defense counsel.
Specifically, this defense requests:
1. Any material or information held by the Honolulu Police Department, and in
particular the Professional Standards Office, related to dishonesty or false
reporting on the part of the State’s witnesses … or any other information or
material that would undermine each witnesses’ credibility;
****
If possible, please respond by March 31, 2016. If there are records for any of these
officers, but none meet the above criteria, please indicate that no records material
or information meet the above qualifications rather than stating that the records are
confidential under one of the section of chapter 92F, if that is possible without
failing your own duties.
Exh. Nine, p. 10; Exh. Ten (emphases added). Although Respondent Ashford promised to review
the Reply and its exhibits in more detail, Respondent Ashford has subsequently denied the same
motion (without findings of fact or conclusions of law), which raised the same arguments, and
with the benefit of the same Exhibits. Holcomb Decl.
II. ISSUES PRESENTED FOR REVIEW AND RELIEF SOUGHT
Petitioner requests this Court review the following issues:
1. MUST PROSECUTORS MEANINGFULLY INVESTIGATE WHETHER
IMPEACHMENT MATERIAL EXISTS?
2. MAY PROSECUTORS SHIFT THEIR DUTY TO INVESTIGATE TO NONLAWYER COMMISSIONERS OR POLICE OFFICERS?
3. DOES IMPEACHMENT MATERIAL CONSIST ONLY OF INFORMATION
RELATED TO TRUTHFULNESS, FALSE REPORTING, OR UNDERMINING
CREDIBILITY?
4. DOES THE GOVERNMENT HAVE A DUTY TO PRESERVE POTENTIAL
IMPEACHMENT MATERIALS?
Petitioner requests this Court mandate that: 1) Respondent Kaneshiro cause prosecutors to
conduct meaningful investigations into the existence of impeachment materials as required by the
constitutions of the United States and Hawai‘i, and to disclose to the defense any and all
information that is, in fact, impeachment materials; 2) Respondents Taketa and Kealoha to cause
the HPC and HPD to provide information to prosecutors, including personnel and disciplinary files
and records for each of the witnesses the prosecutor intends to call, in order that prosecutors may
fulfill their duty to investigate; 3) Respondent Ashford to enforce the duty to investigate, including
sanctions and/or dismissal where prosecutors have failed to conduct the investigation; 4) that this
7

 Court prohibit any Respondent from destroying any potential impeachment materials and, instead,
mandate the promulgation or adoption of policies, procedures and/or practices that preserve
potential impeachment materials in such manner that those materials will be available to
defendants; 5) that this Court amend HRPP, Rule 16(b)(1) and/or (2) to require prosecutors to
disclose impeachment materials within the ten days after arraignment pursuant to Rule 16(e)(1).
Petitioner further requests that the August 17, 2016 order be vacated or modified consistent with
the Court’s conclusions as to these issues, and/or prohibit further prosecution of this matter until
such time as the prosecutor has conducted a meaningful investigation and has an ability to disclose
impeachment materials or accurately represent that no such materials exist.
III. REASONS FOR ISSUING THE WRIT
“A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner
demonstrates: (1) a clear and indisputable right to relief; and (2) a lack of other means adequately
to redress the alleged wrong or obtain the requested action.” Straub Clinic & Hosp. v. Kochi, 81
Hawai‘i 410, 414, 917 P.2d 1284, 1288 (1996). A writ is not intended to usurp a judge’s discretion
except in the event of “a flagrant and manifest abuse of discretion, or has refused to act on a subject
properly before the court under circumstances in which it is subject to a legal duty to act.” Id.
Petitioner’s right to impeachment materials pertaining to State’s witnesses is indisputably
and clearly guaranteed by the Fifth, Sixth and/or Fourteenth amendments to the United States
constitution and Article 1 §§ 5, 8 and/or 14 of the Hawai‘i constitution. At least since the United
Supreme Court specifically recognized such duty in 1995, individual prosecutors have an
indisputable duty to investigate and obtain impeachment materials. Kyles v. Whitley, 514 U.S.
419, 437-38 (1995). The denial of Petitioner’s motion constitutes a flagrant and manifest abuse of
discretion where, as here: 1) the prosecutor relied solely on non-lawyer commissioners and even
police officers to determine the existence of impeachment materials; 2) the prosecutor limited the
scope of the inquiry into the existence of potential impeachment materials more narrowly than the
scope required by due process; 3) the prosecutor instructed the HPD and HPC to report a negative
result if materials did not meet the offending narrowly defined criteria; and 4) the materials will
be destroyed before Petitioner can obtain an appellate ruling on this issue pursuant to Haw. Rev.
Stat. § 52D-3.5, and/or the government’s retention schedule, Exhs. Ten, Thirteen.
Under strikingly similar facts and when evidence that a criminal defendant may be entitled
to would have been unavailable without this Court’s intervention, this Court has previously
8

 exercised its authority under Article VI, section 7 of the Hawai‘i constitution and/or Haw.Rev.Stat.
§ 602-4 and amended HRPP, Rule 6(d) to require a transcript of grand jury proceedings. McMahon
v. Office of City and Cty. of Honolulu, 51 Haw. 589, 590-91, 465 P.2d 549, 550 (1970) (“McMahon
wants to be sure that if he is indicted there will be a grand jury recording in existence so that if he
is entitled to a transcript, he will be able to get it. It is unnecessary to determine now precisely
what circumstances give rise to a right in defendants to have a copy of a grand jury transcript. Even
under a most restrictive view, it is clear that a defendant is under some circumstances
constitutionally entitled to some part of the grand jury transcript.”).

Here, Petitioner seeks

preservation and disclosure of materials to which he may be entitled. As in McMahon, this Court
should exercise its constitutional and statutory authority. See also Haw. Rev. Stat. s 602(a)(5).
The facts of this case reflect the procedure employed in all OVUII cases and, based on the
representations of prosecutors that no “Brady file” or database exists and the statistics pertaining
to HPD misconduct, the risk of wrongful conviction for more serious crimes (or a guilty violent
felon having his conviction reversed) is imminent. This Court should not condone the prosecutors’
willful evasion of its constitutional duties. Without intervention from this Court, the materials
will never be reviewed, disclosed, or preserved in the record of this case for appellate review.
Upon remand from a favorable appellate decision, the records will have been destroyed.
A. Prosecutors are required to investigate the existence of
impeachment materials, the duty may not be shifted to police or bureaucrats,
and impeachment materials consist of more than information suggesting untruthfulness.
“A public prosecutor or other government lawyer in criminal litigation shall make timely
disclosure to counsel for the defendant of the existence of evidence that tends to negate the guilt
of the accused, mitigate the degree of the offense, or reduce punishment.” Reed v. City and County
of Honolulu, 76 Haw. 219, 225-26, 873 P.2d 98, 104-05 (1994); McMahon, 51 Haw. at 592 n.3,
465 P.2d at 531 n.3. “Brady held ‘that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.’” Kyles, 514 U.S. at 432
(1995) (quoting Brady, 373 U.S. at 87). Exculpatory information includes impeachment evidence,
which is treated no differently than exculpatory evidence all of which must be produced even in
the absence of a request by a defendant. United States v. Bagley, 473 U.S. 667, 676 (1985); Napue
v. Illinois, 360 U.S. 274 (1959); Giglio v. United States, 405 U.S. 150 (1972). Impeachment
evidence is not merely evidence pertaining to truthfulness, false reporting, or the undermining of
9

 credibility as this prosecutor suggests in his letter, Exh. Ten. “Any evidence that would tend to
call the government’s case into doubt is favorable.” Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013).
In Kyles v. Whitley, the Court explained that information which might ‘have raised
opportunities to attack ... the thoroughness and even good faith of the investigation
...’ constitutes exculpatory, material evidence. 514 U.S. at 443; see also Bowen v.
Maynard, 799 F.2d 593, 613 (10th Cir.1986) (‘A common trial tactic of defense
lawyers is to discredit the caliber of the investigation or the decision to charge the
defendant and we may consider such evidence in assessing a possible Brady
violation.’). ‘When, for example, the probative force of evidence depends on the
circumstances in which it was obtained and those circumstances raise the possibility
of fraud, indications of conscientious police work will enhance probative force and
slovenly work will diminish it.’ Kyles, 514 U.S. at 446 n. 15, 115 S.Ct. 1555.
United States v. Howell, 231 F.3d 615, 625 (9th Cir. 2000) (emphasis added). Thus, evidence
pertaining to unsustained allegations, abuse of power, and training deficiencies are all frequently
held to fall within the purview of impeachment materials. See Milke, 711 F.3d at 1013-15.
Moreover, prosecutors are not permitted to simply claim that the police department is
separate from the prosecutors’ office and turn a blind eye and deaf ear to the existence of
impeachment materials. Minimal due process requires “the prosecution [to] … learn of any
exculpatory [or mitigating] evidence known to others acting on the government's behalf.” Carriger
v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en banc) (citations omitted).
[T]he individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government's behalf in the case, including
the police. But whether the prosecutor succeeds or fails in meeting this obligation
(whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373
U.S., at 87, 83 S.Ct., at 1196–1197), the prosecution's responsibility for failing to
disclose known, favorable evidence rising to a material level of importance is
inescapable.
The State of Louisiana would prefer an even more lenient rule. It pleads that some
of the favorable evidence in issue here was not disclosed even to the prosecutor
until after trial, Brief for Respondent 25, 27, 30, 31, and it suggested below that it
should not be held accountable under Bagley and Brady for evidence known only
to police investigators and not to the prosecutor. To accommodate the State in
this manner would, however, amount to a serious change of course from the
Brady line of cases. In the State's favor it may be said that no one doubts that
police investigators sometimes fail to inform a prosecutor of all they know. But
neither is there any serious doubt that ‘procedures and regulations can be
established to carry [the prosecutor's] burden and to insure communication of
all relevant information on each case to every lawyer who deals with it.’ Giglio
v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).
Since, then, the prosecutor has the means to discharge the government's Brady
responsibility if he will, any argument for excusing a prosecutor from
10

 disclosing what he does not happen to know about boils down to a plea to
substitute the police for the prosecutor, and even for the courts themselves, as
the final arbiters of the government's obligation to ensure fair trials.
Kyles, 514 U.S. at 437-38 (emphases added). Accordingly, the United States Supreme Court has
expressly rejected that a prosecutor’s duty to investigate and/or disclose impeachment materials
applies only after a conviction, and that a prosecutor can shift its duty to investigate to police
officers or bureaucrats to decide what evidence should be disclosed. See also State v. Peseti, 101
Haw. 172, 185, 65 P.3d 119, 132 (2003) (“where a defendant makes only a general request for
exculpatory material … it is the [prosecution] that decides which information must be disclosed.”)
The procedures or regulations that the United States Supreme Court require are not in place.
Instead, the procedures amount to writing the HPD and HPC (if ordered to do so), asking HPD and
HPC to decide whether information should be disclosed, and instructing the HPD and HPC to
provide a negative response when the HPD and/or HPC determine that the materials are not
directly related to untruthfulness or false reporting.8

This procedure is more “akin to active

concealment,” see Milke, 711 F.3d at 1006, and as shown above, has resulted in Brady violations.
In justifying this lack of investigation, prosecutors routinely abuse Honolulu Police Dep't
v. Town, 122 Hawai‘i 204, 225 P.3d 646 (2010). There, this Court distinguished between “matters
within the prosecutor’s possession or control” enumerated in HRPP, Rule 16(b)(1) and “matters
in the possession or control of other governmental personnel” enumerated in HRPP, Rule 16(b)(2)
and held that the latter may not be subpoenaed by defense counsel unless a court first so orders.
Town, 122 Hawai‘i at 216, 225 P.3d at 659. Had the investigation occurred, impeachment

8

While the inquiries to the HPD and HPC define the scope of the requested information much
more narrowly than that to which Defendants are entitled, prosecutors nevertheless routinely
receive confirmation from the HPC and HPD that, in fact, such information exists. As discussed
above, the HPC and HPD refuse to provide the information even to the prosecutors and claim that
Chapter 92F of the Hawai‘i Revised Statutes (Information Practices Act) “protects” the
information. However: 1) these are not Information Practices Act requests; 2) even if they were,
if the public interest outweighed the privacy concerns, the information would nevertheless be
publicly disclosed, Haw. Rev. Stat. § 92F-14(a), Peer News, LLC v. City and County of Honolulu,
138 Hawai‘i 53, 376 P.3d 1 (2016); and 3) any privacy concerns could easily be alleviated by an
appropriate protective order. Moreover, “[c]riminal Defendants’ constitutional protection trumps
any privacy privilege or statutory protection.” Peseti, 101 Hawai‘i 172 (holding that when “a
statutory privilege that interferes with a defendant’s constitutional right to cross-examine, then,
upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of
the truth-seeking process, bow to the defendant's constitutional rights.”).
11

 materials would be within the scope of Rule 16(b)(1)(vii). Accordingly, pursuant to the plain
language of Town and HRPP, Rule 16(e)(1), “[t]he prosecutor must disclose to a defendant, within
ten calendar days after arraignment and plea, ‘any material which tends to negate the guilt of the
defendant as to the offense charged or would tend to reduce the defendant's punishment therefor.’”
Id. at 214, 656 (citing HRPP Rule 16(b)(1)(vii) and (e)(1)). However, because none of the
procedures or regulations contemplated in Kyles, supra. are in place in Honolulu, prosecutors
conveniently claim that the materials fall within the scope of materials identified in HRPP, Rule
16(b)(2). Thus, pursuant to Town, Defendants must “specifically designate” the materials and
cannot subpoena materials unless they can first somehow convince a judge that the materials exist.
A Defendant’s inability to make such a designation and showing is the precise reason that the
United States Supreme Court places the duty to investigate and obtain such materials squarely on
the shoulders of the prosecutor. Kyles, supra.; see e.g. Pennsylvania v. Ritchie, 480 U.S. 39, 56
(1987) (“criminal defendants have the right to the government’s assistance in compelling the
attendance of favorable witnesses at trial” and holding due process required disclosure of
confidential file). Prosecutors should not be permitted to fail its duty only to claim that “the State”
does not possess the materials. It appears to the undersigned that this Court presumed when Town
was decided that prosecutors were obtaining materials as they are required to do so.
B. The HPD and the HPC have a duty to preserve these materials.
At minimum, the government has a duty to refrain from destroying evidence with apparent
exculpatory value. See State v. Matafeo, 71 Haw. 183, 787 P.2d 671 (1990) (citing Arizona v.
Youngblood, 488 U.S. 51 (1988)). Here, there is no such exception in the retention schedule(s) or
Haw. Rev. Stat. § 52D-3.5. Exhs. Thirteen, Fourteen. All records, which are at least potentially
exculpatory, are destroyed. Absent a referral for prosecution, those records are never provided to
the prosecutor for retention or review. Yet, impeachment materials do not have an expiration date.
This Court should order that all such records be provided to the prosecutor for review and retention.
At the very least, this Court should order Respondents HPD and HPC to preserve the records for
the length of time in which any particular officer may be called to testify in a criminal matter.
IV. CONCLUSION
This Court should grant the relief requested herein.

Defendants are entitled to

impeachment materials and the prosecutors must investigate. Otherwise the courts’ truth-seeking
function is obstructed.
12

 DATED: Honolulu, Hawaii; September 16, 2016.
s/Richard L. Holcomb
Richard L. Holcomb 9177
Attorney for Petitioner Lawrence Suan

13