The city is going to court to protect evidence uncovered by ethics investigations of Kathy and Louis Kealoha. It’s findings that later played a role in the ongoing federal criminal investigation.

The Kealohas’ civil attorney is trying to remove restrictions that are part of a confidentiality agreement protecting who can see documents and evidence that the feds had already subpoenaed. The city is trying to enforce keeping it under wraps, but have to do so in court. This comes after a lengthy and costly lawsuit brought by the Kealohas was dismissed. 

In the summer of 2016, the Kealohas filed a 1,000-page lawsuit saying a federal grand jury — which has since delivered indictments against the former police chief and former deputy prosecutor — can be traced in part to what the Kealohas called “vindictive and illegal investigations” by the Honolulu Ethics Commission. 

Taxpayers covered the tab, authorized to $700,000 — with $639,462.06 spent so far — for outside counsel to defend the city; Chuck Totto, who resigned as ethics director just before the filing; and former ethics investigator Letha DeCaires, a retired Honolulu police captain. 

“It never should have been filed,” said Joachim Cox of the firm Cox Fricke LLP, retained by the city to represent Totto. Two other firms separately represent the city and DeCaires. “It should not cost the taxpayers. It does cost to go forward untying those knots and it was very expensive.”

The case was finally dismissed just over a month ago, but only after attorneys opposing the Kealohas put up the ultimatum — sit for depositions, or let it go. The case was dismissed and came with a protective order designating much of the case material as either confidential or for “attorneys eyes only.” Just last month, the city got word the Kealohas’ civil attorney, Kevin Sumida, was challenging those protections. The city has now asked the court to make them stick. 

Always Investigating asked why it’s important to protect that evidence.

“It’s mandated by the rules and by the statute that the investigative files are confidential,” Cox said. “But the more important thing whenever you’re investigating anyone is to ensure that the people who are witnesses to the matter feel comfortable bringing it forward. This is certainly a circumstance that there’s a heightened concern related to the actions that have occurred, not necessarily in this case, the civil case, but certainly as reported that the Kealohas have been involved in efforts to try and impact witnesses in their criminal case.”

The FBI subpoenaed the Ethics Commission investigative files prior to their indictments. 

Always Investigating asked whether the feds would have to share it anway if it’s pertinent to either their case to prosecute or to the defendants’ case as exculpatory evidence.

“Under the federal rules and the law, they certainly would be providing it to the Kealohas’ criminal defense attorneys,” Cox said. “They shouldn’t be trying to utilize the civil case to defend their federal case.”

The Kealohas’ attorney disagrees. Sumida told Always Investigating: “It is believed that there may be important evidence within those documents which, if brought to light, will materially assist the defense of the criminal case, and which, while well known to federal prosecutors, have been concealed. ” 

Sumida adds the protective order agreement specifically allows this very challenge process to the scope of secrecy, stating: “The City’s petition is being filed pursuant to a previously-agreed procedure to resolve a dispute between the parties as to the scope of secrecy to be accorded to certain Ethics Commission documents which were previously given to the federal prosecutors.”

The protective order case had a status conference just this week. It remains to be seen what, if anything, more can be seen from those secret files. As for that underlying dismissed civil lawsuit, it can be re-filed if the Kealohas choose after their criminal case is resolved through dismissal, plea or conviction.