HONOLULU (KHON2) — A defense attorney is asking a judge to disqualify the deputy prosecutor who signed off on charges against three HPD officers for the death of a 16-year-old boy.
Legal experts say this adds another dimension to what is already a highly unusual case.
The court filing by defense attorney Richard Sing says deputy prosecutor Chris Van Marter has made himself a witness and a prosecutor in this case, which the defense says creates a conflict of interest.
Sing represents officer Geoffrey Thom, who is charged with murder for the death of Iremamber Sykap. Officers Zackary Ah Nee and Christopher Fredeluces are charged with attempted murder.
After a grand jury declined to charge the officers, Sing’s motion says Deputy Prosecutor Chris Van Marter reviewed the evidence and went ahead and charged the officers by complaint “… based on his personal review of the evidence… (which) has now made him the witness at the preliminary hearing.”
He adds, “Van Marter’s appearance as counsel and as a witness creates an irreconcilable conflict and he must be disqualified.”
“He reviewed all of the evidence and then he signed off on the evidence stating that he has personal knowledge that this is what the evidence showed,” said defense attorney Megan Kau.
Kau is not involved in the case. She says a detective with the HPD’s Professional Standards Office would normally review the evidence and then be called as a witness.
“Typically the deputy prosecuting attorney would have a detective sign off on the complaint,” said Kau. “So that when we get to the preliminary hearing, we call the detective as a witness and the deputy prosecuting attorney is not put in a position where he has to be the witness.”
Kau adds that there’s nothing illegal or unethical about how the prosecutors are handling the case. But it does make the case even more unusual since prosecutors decided to charge the officers after a grand jury declined to do so.
“Even though the government has worked within the boundaries of the Hawaii rules of professional conduct and our Hawaii Revised Statutes, I’ve never seen such a thing happen in my entire career, both as a deputy prosecuting attorney or a defense attorney,” said Kau.
Defense attorneys already filed a motion to dismiss the case because the grand jury declined to indict the officers.
Sing filed a motion in support of it adding that cases like murder and attempted murder should not be charged in district court.
A spokesman for the prosecutors office says they will respond to the motions in court on Tuesday at the preliminary hearing at 1:30. So the judge will first have to rule on the motions before the actual hearing.