 Bingo, a 10 o'clock rock. Welcome back to Think Tech. I'm your host, Jay Fiedel. My guest for this edition of Life in the Law is Kevin Takata. He's the prosecutor in the Billy Connoi trial in the Big Island. We'd like to get the story of what happened in that trial. Billy Connoi, formally, as of the end of December, was the mayor of the Big Island for eight years. And he'd been charged with several accounts, some of them in felony accounts relating to the use and misuse of a county P card. Counts one and two, theft in the second degree, class C felonies each, punishable by up to five years in prison, and a $10,000 fine. Counts three and four, theft in the third degree, misdemeanors each, punishable by up to one year in jail and a $2,000 fine. Then there was a count or a bunch of counts that were dismissed, counts five, six, and tampering with the government record. Misdemeanors each, punishable by up to one year in jail and a $2,000 fine. And count eight, false swearing, a petty misdemeanor punishable by up to 30 days in jail and a $1,000 fine. So Kevin Takata was the prosecutor in the case. He's a state deputy attorney general. He went to the Big Island for this county trial. The jury reached the verdict in the trial for Hawaii Island mayor Billy Kenoy as of the end of November in 2016. He was found not guilty of misusing his government issued credit card or P card for personal purchases, mostly alcohol related. He was on trial for four counts of theft, as I mentioned, one count of making a false statement. The decision, which was read in a Hilo courtroom at the end of November, declared him not guilty on all the counts. And the mayor mouthed the words, thank you to the jury. Five men, seven women, had to determine whether he had unauthorized use of his taxpayer property, in this case, taxpayer money. If he had the intent to deprive the county of Hawaii, it took them five hours of deliberation over two days to reach a decision. It wasn't the outcome that Kevin Takata and Deputy Prosecutor Attorney Michelle Poole wanted, so Kevin, welcome to the show. Thank you, Jay, and good morning. Good morning. So tell us, what happened here? This was a strange trial, because everybody I know expected that he would have been found guilty. And lo and behold, the Big Island sort of downhomed him. They gave him a pass, they outlawed locals, what they did, I think. Tell me what happened. The challenge was where the case was tried. And you may wonder, why did we leave it on the Big Island? Why didn't we seek to change venue? It was very important that the case be tried on the Big Island in front of his constituents to give integrity and credibility to the verdict, either way. And that's why we didn't even attempt to move it off of the Big Island. Even in charging him, we could have simply filed papers with a judge. The judge would make the determination, and as they often do, they agree with the state there's enough to charge the person. But instead of doing that, we went to grand jury, again in front of his peers, to determine if they wanted their mayor charged. And then we went back before jury to let them decide his guilt. And that was the challenge, because to use a football analogy, we were on their home field, in their stadium, in front of their fans. And their fans decided the outcome. Yeah. Trial by fan. Yes. Well, OK, so you selected these charges. Some of them are pretty serious, serious jail time felony, and there was serious money involved in what he took with the PCARC. So can you give us, you know, some pricey of the facts of what he did, how much he took, how he took it, what he spent it on? Well, in total, if you've reported that, he racked up about $120,000 worth of expenditures. But not all of those were personal. Quite a few were legitimate county-related expenses. So we knew that in sifting through the evidence, there were going to be two issues. One was the charge, the PCARC charge, a personal one, as opposed to a county-related expense. And second, did he intend to pay it back, or did he intend to deprive the county of that money? Yeah. Now in selecting the charges, we weren't looking for alcohol-related charges. Those charges sort of rose to the surface. And by that, I mean, in determining the intent to deprive, we looked at the length of time between when the credit card was used and when payment was made, and what happened in the interim. And what happened for all the charges we selected, you know, 15 transactions, was that either on the day that payment was made, or within two days, there was a media request for his records. Like a Freedom of Information Act type request for the media? Right. So that gave us the opportunity to argue that, but for the media request, he wouldn't have paid it back. And in one situation, the expense went unpaid for over two years. So there were other personal charges. And it was cited that he bought a surfboard, a bicycle. However, there wasn't that delay. And when repayment was made, it didn't look like it was in response to a media request. Yeah. Well, can we back up a little bit and talk about the P-card. P-card's credit card, isn't it? Right. Or a debit card, have a look. The county is behind it in this case. And as an official, he's issued one with the idea it's kind of an allowance that he can use to pay county expenses that cross his desk. And I guess it's all over the state, this P-card technique. It must be a state practice. State and county. State and county. So you can get a county P-card and you can get a state P-card. And this in case, this was a P-card from the county. Right. And stensibly, if you need to spend a few bucks to take out somebody for lunch, I suppose, as you would as an executive who gets an allowance. Right. You're OK to do that. But in this case, it sounded like he went far beyond that. He was using it as his card. And then he was deciding when he wanted to decide whether it was a personal expense or it was his county expense. And he was making those decisions. Am I right? That's what the charges suggest. Part of the challenge also was what we weren't allowed to get into evidence. What was kept out were two memos that were important to the case. One was written in 1999 by then mayor Stephen Yamashiro. And it prohibited the purchase of alcohol except to entertain dignitaries. The other was authored within about a month of Mayor Kanoi taking office by his then finance director. And it said under the subtitle Meals in capital letters with an exclamation point, no alcohol. But we weren't allowed to introduce those two memos as evidence. And we thought that was critical to our contention that these purchases should not have been made in the first place. So the jury never knew about these things? No. So why was it excluded? The judge felt it was irrelevant. Really? Sounds to me to be perfectly totally irrelevant, just as me speaking, though. I wish you were the judge. Extraordinary. Because I'll tell you why. Because if this kind of thing, as you have described it as the various counts described it, happened in an executive situation in industry on Bishop Street here, that guy would have been hot water. And depending on exactly how powerful he was within the company, I suppose he could have been fired like that, would have been fired like that. In my company, in my law firm, for the years I practiced, that would have been the end of the job that had been over. Because it's an abuse of a trust. If you give somebody a P card or a credit card, it's a trust. And the written or unwritten rule, even if it's not written, the unwritten rule would be don't use this to your personal. You can't borrow money from us. If you want to borrow money, come and ask us. Don't just take it. And I think that's really not acceptable in the, what do you call it, the business community. Therefore, it should not be acceptable, unless acceptable, actually, in the government community, where there is so much trust, you have to put your trust in public officials. So this is really strange. It's also strange, as I said, that the judge would have excluded this evidence because it states the rule on alcohol. And alcohol was the matter in issue, at least once it surfaced in your investigation. Well, the defense contention was that the memos were irrelevant because other policies and procedures allowed the mayor to purchase alcohol. But our position was that, okay, submit all the documents to the jury. Let the jury decide. Let them read it and decide. Because the defense kept pointing to the county code and say there was specific authorization to purchase alcohol. But when you read it, it doesn't say that. So I said, let the jury read it. Let them determine that. The jury gets to see those rules that permitted alcohol or were vague on permitting alcohol. Did the jury get to see that? Yes, but they didn't get... So one man clapping, no? Yes, because they didn't get to see the memos. Yeah, so they saw the authority that would have arguably permitted it, but they didn't see the other authority, which I think is closer to where the mayor lives than what he should be doing. Internal memos created by the county on this exact issue, there's no ambiguity there. They didn't get to see that. No, they didn't. But I must preface that observation by noting that from my understanding, the four persons said that the issue was whether he had the intent to deprive him. Now these memos would have established those purchases were personal. So obviously they didn't have a, or it looked like they didn't have a problem that these were personal purchases. But the claim that he didn't have the intent to deprive when the evidence wasn't there is apparently what swayed the jury because he did make reimbursement, you know? Even though he was late. Right, but again, our contention is that he did it because the media requested his records. Now another obstacle we had that we couldn't get into is during the investigation, we subpoenaed records from the mayor's office and the county department of finance. Now pursuant to their policies, receipts were supposed to be kept. Finance kept the original, the mayor's office kept copies. Now without those receipts, there would not have been a prosecution. We would not know what was purchased and we would be in the dark. So that's not enough to go forward. So what the investigator did when he couldn't get the receipts was he went to the merchants. So we got the evidence from the merchants when the county should have had those records. And if they claim that they didn't have them or there was no receipt turned in, their policies required an affidavit to be submitted and we received very few affidavits. So we weren't allowed to get into that. In fact, we weren't allowed to even put our chief investigator on the witness stand. Why not? That was precluded. Why was it precluded? Under the claim that again, it was irrelevant. Oh really? And we didn't learn that until the Monday. And we're on the big island. The request to keep the chief investigator off the stand was made on Friday. We go back to the big island on Monday, fully expecting he's gonna be allowed to testify. So he's there. And we learned he won't be allowed to testify. And when asked to explain why he's relevant, it's like being a chief investigator. We explained that this failure to turn over receipts by the mayor's office and county finance was circumstantial evidence of a cover up. And you don't cover up things that you do right. And so that's what you call it, circumstantial evidence of the intention which you have to prove. So the claim by the defense was that it's not relevant because you haven't tied it to the mayor. So okay. You know, I can see that. Here's the tie in. Prior to the subpoenas, the media request asked for his P card records, okay? Now in response, they turned over a summary. In the summary, it didn't contain the P card transactions which were the basis for the felony DEF count, DEF one. And the mayor's administrative assistant testified that he had the final say on what was released to the media. So I say again, circumstantial evidence. What was released did not contain the charges that we're relying upon. I mean, that's not just coincidence, at least not in our minds. No, but it didn't get in. No, it didn't. No, our chief investigator didn't get to testify. We're gonna come back in a minute, Kevin. This is Kevin Takata. He's the fellow who prosecuted the U.S., rather a state attorney general, deputy attorney general prosecuted the Billy Kenoy case in November and talking about the Billy Kenoy trial. And we're gonna come back and I like to know how the investigation began in the first place. I like to know what the mood and the tenor and tone of the people in the courtroom was and the witnesses for that matter who testified on Billy Kenoy's account. And his testimony, because he testified in this trial, we'll be right back. Hello, I'm Marianne Sasaki. Welcome to Think Tech Hawaii, where some of the most interesting conversations in Honolulu go on. I have a show on Wednesdays from one to two called Life in the Law, where we discuss legal issues, politics, governmental topics, and a whole host of issues. I hope you'll join me. Hi, I'm Chris Lethem with Think Tech Hawaii and I'd like to ask you to come watch my show, The Economy and You, each Wednesday at 3 p.m. Aloha, Kako. I'm Marcia Joyner and I'm inviting you to navigate the journey. We are discussing the end of life options and we would really love to have you every Wednesday morning at 11 a.m., right here. Aloha, everybody. My name is Mark Shklov. I'd like you to join me for my program, Law Across the Sea, on thinktechhawaii.com. Aloha. We're back on Life in the Law with Kevin Takata. Maybe we should call this show Fresh Air. Honolulu Fresh Air through the Billy Kenoy trial. So, you know, you as a prosecutor wanted to send a message. I mean, prosecution has a message to send and that is follow the law, abide by the law. And, you know, we don't want people violating the public trust but you weren't able to send that message. Instead, by this acquittal, another message was sent. What do you think that message was? Message to the press, the public, you know, represented by the acquittal? Well, I don't quite agree with that assessment. Yes, the mayor was acquitted but I think it was very important that the attorney general brought the case to begin with. Yes. To let the public know that when we see public corruption and the evidence establishes guilt beyond a reasonable doubt, we are bringing that case to trial no matter how difficult it may be. You make that decision that it's worth prosecuting. Right. You know, you have the evidence, you believe you have the evidence sufficient to get a conviction. Right. Otherwise, you wouldn't even bring it. I knew it was going to be a difficult trial from the very beginning but we want, again, the public to know that we are not going to shy away from difficult cases. We are not afraid to lose. We don't like to lose, no one does but we are going to take the case if we believe that a wrong was done, the public was harmed and what we want to do is restore confidence of the voting public and others in their government and maybe if the number of voters increases, we, that would be a sign of our success. Yeah. But that's the way, that's the direction that we want to go with. And we talk a lot about that here at Think Tech. We talk about the relationship of the citizen and the government and sadly, I think, both state and federal levels, we have people who are completely disenchanted with government, who don't believe in government anymore. Right. Or completely cynical about government and this result actually makes you somewhat cynical about government. Here's the guy, everybody thought was, everybody I know thought was going to get convicted. There was clear and he winds up walking completely on every single count. But there's more than that. It's the down home thing. So my reading of the news clips on this is that the room was filled with his friends and everything had happened, there were hugs and kisses all around and it was like old home week there in Hilo when this trial was conducted. Am I right? Oh, no doubt he had his supporters and quite a few of them and we expected that. On the other hand, we had ours too. Maybe they didn't appear on camera. Maybe they weren't as visible, but nonetheless, they were in our corner and supporting us all the way. And we do appreciate that. And I just want to thank those people. Yeah, for coming forward. Right. It's not easy when people, the down home people are going to be ticked off at you for having work to prosecute the mayor. Right. Their friend. Well, then he testified. That was very interesting. It's usually right, the defense says don't testify. Not a good idea. But he got up testified in a tearful testimony. What was that like? We were prepared for that. Mayor Kanoy is a very charismatic and engaging person. Yes, he is. And he was the same while on the stand. So it was quite a challenge. You know, I believe he connected with the jury, you know? And then apparently, that was a good decision for them because it shows in the verdict. Yeah, he is charismatic. I've seen him speak. And friendly, warm, very local, funny, really good sense of humor. And that pigeon style of his, it's commanding in the Hawaii context. And during the entire proceeding, it was very cordial and friendly between the two of us. There's no animosity. He understood that this was not a personal vendetta by any means. You know, in fact, it started out at the beginning during arraignment. I saw him in the courtroom. I know him. So I went over and said, Billy, I hope you understand. There's nothing personal. And he responded and says, Yes, Kev, you've always treated me well. He's the mayor. He's a public official just like you, you know? And you've known him over years. So that's the way that was the atmosphere through the rest of the trial. You know, it was contentious between the attorneys, but not between myself, Ms. Poole and Mayor Kanoy. It wasn't like that. Yeah. Not everybody could have pulled that off the way he did, though. It takes a special personality to pull that off. Yeah. In front of a jury with prosecution and felony charges hanging all over. Would he have been able to do that, do you think, on Oahu? I think our chances of obtaining a conviction on Oahu would have been greater. Yeah. But again, we left it there because it was very important that his constituents decided guilt or lack of. Did he, I guess he could not run for mayor again. Right. It was a term limits thing. Harry Kim, who had been the mayor before, came to be the mayor. I can't after he was sandwiched and Billy Kanoy. And I mean, do you have a sense of the tone of the public on this? I mean, they were now faced with right there, right up front, with this pretty serious trial. Is he gonna be able to make any headway politically as a candidate for other office? That's beyond my expertise, so to speak. But I do know that since returning after the verdict, we lost in the courtroom, but in the court of public opinion, we've had some favorable responses. Yeah, yeah. And unfortunately, the justice system and the judicial system as a whole did not benefit on me, but the people I mentioned that I know who were unhappy with this result, it doesn't make them feel good to see this happen. Especially when you're talking about public money, when you're talking about this kind of behavior, buying booze, taking people out. What about that argument? He made the argument, I guess he made it consistently throughout, that it was okay to buy booze, it was okay to use a taxpayer's money despite those memoranda that never got in, because that helped him create and maintain important relationships. And these relationships fueled by the alcohol were good for the county and for the state. How did he express that? I mean, that's a really tough argument as far as I can see. Well, that argument was really made by his attorneys and you stated it very well. So we said, okay, if that's your defense that the alcohol was necessary for relationships and then in return relationships led to funding grants and other things for the county, then you have to establish that link between the alcohol and not just the alcohol, but picking up the tab and the funding and grants or whatever the county received. We thought there was an agreement by the judge that that link had to be made, but it was never connected up in the courtroom, but yet they were allowed to go into that area and make that argument. And we weren't even allowed to ask witnesses whether they would have provided funding or grants if there wasn't the alcohol and picking up off the tab. Seems to me a reasonable question in light of that defense. The door was open. Right, we thought so, but we weren't allowed to ask that. Well, the newspaper said that the jury came back unanimously in favor of acquittal. Five men and seven women, I think it was, unanimous. Now, does that mean that they had to be unanimous or they were, did you ever query the jury? Did you ever talk to them on the side as you can about this? No, yes, you're right first. It had to be unanimous. In order to acquit or convict, it has to be unanimous. Otherwise you have a hung jury. We didn't speak to them. We didn't even ask that they be polled. When there's an acquittal or conviction, the losing side has the option of asking the judge to make sure that it is unanimous. But we didn't want to place that on us on the jurors to have to speak in public and to confirm their verdict. Yeah, and I mean, at that point in time, there was a celebratory tone in the air, I suppose. Yes. I remember. Well, from the other side of the courtroom. All this noise and commotion about congratulating him, kisses all around that he would escape these charges. Incredible. Can we go back now, Kevin, from the beginning, from the time this first came to your attention, is there anything you would have done differently? That's a good question in terms of bringing the case. No, given the result, I may have tried it differently. I always think about that. You're never satisfied with any trial you've done. At least the attorneys, I know that have been successful. Even when you win, you think back and think, how could I have been better? Yeah. The role of the prosecutor. You feel that on your shoulders, the public trust is on your shoulders. We all expect you to do the right thing. And rightfully so, that's our job. Yeah. To go back one step before that, I mean, how did this originally come to the attention of the investigator or, I don't know if the police were directly involved? How did it come to your attention? Was there some whistleblower person or somebody who turned him in? Yes, what happened was, and we weren't allowed to get into this trial, someone anonymously left a copy of the P card, the credit card statement at a reporter's office. That statement had the much publicized bar charge. She followed up on that. And because she had that statement, the county finally released his other P card statements. Before then, they were only releasing summaries. So the story broke. We got in the vet through the prosecuting attorney's office on the big island. Yeah. And the investigation started. And I've learned through training that these type of cases often begin like that. The media reports lead to, hey, what's going on? We should investigate that. And charges me follow. So it's good. The media plays a role. A very important role. And the fellow who turned it in, he played a role. Well, we don't know if it's a man or woman, yeah. Okay, person who turned it in. And the whole process, I suppose, in that regard, it worked and people shouldn't be shy about that. If there's an abuse that comes to their attention, they should say something. Well, Kevin, we're almost out of time, but let me offer you the opportunity of expressing to whoever's watching on camera one what this should show them, what this whole experience should show them, what they should take away from the Billy Kenoi case, what he did, and what the judicial system did. What should they carry home? Well, I think the important thing for the public to understand is that the attorney general is focused on public corruption. And we'll pursue the case when the evidence exists to appropriately seek charges. And we'll try the case, despite the odds, if we believe that the evidence can prove guilty on a reasonable doubt. And we want to instore integrity to government. And we want the public to have a renewed sense of confidence in their elected officials and in government. And hopefully we will see positive results when the voting rolls go up. And that's what we're attempting to do. Yeah. And we really can't afford, literally, economically, financially, can't afford to have this kind of corruption going on. We can't afford to have political officials taking money out of the till. That's our money. They have to be careful and the message has to be clear to them. It's not permitted. We've got to keep on prosecuting these cases, Kevin. Thank you. We will. Thank you.