The clock is ticking for Louis and Katherine Kealoha after a judge set a deadline for the couple to prove they can no longer afford private attorneys.
In court filings entered late Tuesday, attorneys Kevin Sumida, who represents both Kealohas, Myles Breiner, who represents Katherine Kealoha, and Gary Modafferi, who represents Louis Kealoha, state that:
“Defendants can no longer fund a defense. Their assets have been effectively frozen by the federal government, and the terms of their bond prohibit them from even applying for a loan. On Nov. 7, 2017, after much consideration, it has been determined by counsel and defendants that the defendants are unable, and will be unable, to raise the funds necessary to fund a defense for the instant case, which will involve, as the government claims, a quarter of a million pages of evidence, some 500 witnesses, and a trial consuming four months.
“The parties have been informed by the government that this case will involve a quarter of a million pages of evidence, and some 500 witnesses, and that this trial is likely to consume at least four months.”
“Counsel also requests, and recommends, that pro hac vice CJA counsel be appointed to represent the defendants, pursuant to § 210.30.30 of the Criminal Justice Act Guidelines. These guidelines provide that, if it is in the interests of justice or other compelling circumstance warrant, pro hac vice CJA defense counsel may be appointed. The instant case is of such magnitude and complexity that there are no other attorneys locally available who are both qualified and not suffering from potential conflicts of interests.”
Modafferi told KHON2: “The gist of the motion is there is economic hardship that has developed with the Kealohas because of the changed financial circumstance which makes current retained counsel an impossibility. …
“Both of the defendants need a vigorous defense, a costly defense. It includes not only the lawyers, but the investigators, forensic experts. The whole package is necessary to defend a very complicated case.”
We asked Modafferi if it’s possible any of the current attorneys could be appointed and taxpayers would have to foot the bill.
“At this point, that’s not what we’re thinking. We’re not seeking that now, no,” he said.
“We need to be honest and have some integrity here.”
In court Wednesday morning, Chief Judge J. Michael Seabright did not hold his tongue on what he thought about the new filings.
He brought up how last-minute the requests were, and even questioned the attorneys’ integrity.
The judge asked for clarification as to what assets were frozen. Sumida said it included the Kealohas’ Hawaii Kai home.
As for the claim that the Kealohas cannot apply for a loan, the judge said that isn’t true, and that the Kealohas made no attempts to apply for a loan.
Breiner told the judge: “The only income they have coming in is pension from Mr. Kealoha. Mrs. Kealoha does not have a pension. They have a daughter in college.”
Breiner and Sumida were in court Wednesday because the federal prosecutor wants them removed over potential conflicts of interest.
“I’m disappointed. Been working on the case a long time. We intended to vigorously fight the motion to disqualify myself and Mr. Sumida,” Breiner said.
The court-appointed attorneys would come from a rotating Criminal Justice Act Panel, and are eligible to represent individuals in criminal cases who aren’t financially able to hire their own.
Ken Lawson, a professor at the University of Hawaii William S. Richardson School of Law explained, “Under that act, not only can they get that appointed counsel, they can say, ‘I need an investigator. This case is huge. I need an expert on banking records. I need an expert on’ whatever, computer expert. They can get those appointed to them too without having the money.”
Seabright said he needed to see whether the Kealohas even qualify for court-appointed counsel, which is why they are set to return to court Thursday.
The 20-count indictment against the Kealohas includes conspiracy, obstruction, false statements, and bank fraud.
Federal authorities accuse the Kealohas of bank fraud. They, along with members of an elite police squad, are also accused of framing Katherine Kealoha’s uncle, Gerard Puana, for stealing their mailbox.
(a) If the district judge presiding over the case, or the chief judge if a district judge has not yet been assigned to the case, determines that the appointment of an attorney, who is not a member of the CJA panel, is in the interest of justice, judicial economy or continuity of representation, or there is some other compelling circumstance warranting the attorney’s appointment, the attorney may be admitted to the CJA panel pro hac vice and appointed to represent the CJA defendant.
(b) Consideration for preserving the integrity of the panel selection process suggests that pro hac vice appointments should be made only in exceptional circumstances.
(c) The attorney, who may or may not maintain an office in the district, should possess such qualities as would qualify the attorney for admission to the district’s CJA panel in the ordinary course of panel selection.