AG swung big, and missed

By the time the jury came back from short deliberation Tuesday, the verdict seemed like a forgone conclusion even before it was announced.

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By the time the jury came back from short deliberation Tuesday, the verdict seemed like a forgone conclusion even before it was announced.

Mayor Billy Kenoi, after an 18 month-long saga that started with a reporter’s public records requests, was found not guilty of two counts of second-degree theft, two counts of third-degree theft and one count of false swearing for alleged abuse of his county credit card, or pCard.

But the writing for that outcome had been on the wall. It was there even before a local celeb took the stand with a shaka and a joke or two and even before the 12-member jury got to take in testimony on what a terrific man the mayor is and what a humble upbringing he had.

Before the verdict was announced Tuesday, visiting Honolulu judge Dexter Del Rosario had tossed three counts of records tampering charges against the term-limited mayor for insufficient evidence after the Attorney General’s Office rested its case.

Del Rosario was a visiting judge because no local one wanted to take it on. That’s fine. Better be overly cautious on partiality, even if the same island is providing the 12-member jury pool. We do and did trust the jury pool, but there’s no mistaking that was a home game for Kenoi. Still, sometimes you have to win a tough one on the road.

But to have three charges after the AG’s yearlong investigation tossed in a jiffy is as bad a sign as it gets.

And as far as we could tell, the AG’s case was based on the work of West Hawaii Today reporter Nancy Cook Lauer, whose pursuit of record requests on the mayor’s credit card eventually broke Kenoi’s spending habits open. So why not charge Kenoi on what the reporter’s work showed — simply that the mayor misused his pCard?

Hawaii Revised Statute 103D-101, the procurement code, lists the responsibility of officials spending public money in an ethical manner, for example. Violation of which is a misdemeanor, it says officials should act as a fiduciary and trustee of public moneys, in the interest of the public. The state’s pCard rules, written by the State Procurement Office, say food and hotel purchases should be blocked. Misdemeanor violations against rules such as those are punishable by a fine, removal from office, real punitive stuff.

Often, you see misdemeanors added on to bigger cases — a lower hanging fruit easier to pick on the way to the stuff higher up. But the AG’s office went straight for the big guns with theft, and that was a tough uphill climb with nothing easier to grab onto on the way.

“It’s not enough to show abuse of power or bad judgment,” Ken Lawson, a faculty member of the University of Hawaii Richardson School of Law, said following the verdict about the tough case the AG had before them, regardless of which purchases they focused on. “You have to show a really specific intent to deprive the person of the property.”

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Defending against theft turned into defending against intentions. Yes, Kenoi spent the money, but he always intended to pay it back. Coincidence that he paid it back after the reporter went after records? Maybe, prove it wasn’t. It was over and done with pretty quickly, actually.

Which leaves us with the feeling the state didn’t want to punish Kenoi as much as embarrass him. It certainly dragged on long enough to do just that, but it seemed there was more of a message being sent than anyone looking for real reprimand.