Court denies motion to recuse Bennett in Ka Loko dam disaster case

Michael Levine has an informative piece in The Garden Island this morning reporting on arguments at yesterday's hearing on Pflueger's motion to remove the Attorney General from the case and replace him with a special prosecutor. Pflueger attorney Bill McCorriston argued that there exists a conflict of interest since the state is a defendant in a related civil suit.

Deputy Attorney General Mark Miyahira argued his office has formed two separate teams — one to defend the state against civil claims in the case, and another to investigate and potentially prosecute criminal defendants — that do not share information, complying with the law, and should be allowed to continue to conduct its investigation.

Miyahira referenced the 1990 Hawai‘i Supreme Court case State v. Fritz Klattenhoff, in which the court determined the AG could “represent a state employee in civil matters while investigating and prosecuting him in criminal matters, so long as the staff of the AG can be assigned in such a manner as to afford independent legal counsel and representation in the civil matter, and so long as such representation does not result in prejudice in the criminal matter to the person represented.”

McCorriston repeatedly argued the “ethical wall” separating the two teams should be “sacrosanct” but was instead apparently “permeable,” and Valenciano joked the wall was not high enough as it has allowed Bennett, purportedly on the criminal prosecution team, to read depositions obtained by the civil litigation team, according to a pair of declarations.

“You have to excuse my simplistic definition,” Valenciano told Miyahira, “but that sounds like sharing to me.”

Miyahira highlighted the difference between the two units sharing information — something Valenciano described as “huddling” and said would be problematic — and traditional evidentiary discovery that would be unquestioned if the civil attorney was not part of the same government department but rather a third party.

At the end of the hearing, the judge explained that he had not received sufficient factual presentation from McCorriston regarding specific improper passing of information between teams to warrant either Bennett’s recusal or the disqualification of the entire office, closing the door on the motion but leaving a window open to revisit the matter should more details come to light.

Here's Star-Bulletin Tom Finnegan's report.

Pflueger is specifically suing the state Department of Land and Natural Resources in regards to the breach, and Pflueger and multiple state agencies and departments are codefendants in a number of other cases regarding the catastrophe.