KAILUA-KONA — Defense counsel for a former Hawaii Police Department officer accused of fatally striking a bicyclist in 2015 hopes to recuse county prosecutors from the case due to conflict of interest.
On Friday, Brian De Lima filed a motion with 3rd Circuit Court requesting to disqualify the Hawaii County Office of the Prosecuting Attorney from the Jody Buddemeyer case citing the Deputy Prosecuting Attorney Kauanoe Jackson’s marital relationship with Hawaii Police Department Sgt. Erich Jackson.
After five continuances, Buddemeyer is scheduled for a jury trial on May 22. A hearing has been scheduled to address the motion on May 8.
In his court filing, De Lima points out that Jackson’s subordinates were assigned to investigate his client’s case.
“Sergeant Jackson is the ranking officer over all or most of the officers who reported to the scene of the incident,” the motion states.
While the deputy prosecutor is married to a sworn police department employee, there is no indication that Sgt. Jackson or his subordinates were involved in investigating the Buddemeyer case.
Jackson was working as a patrolman in Kona at the time of the crash, which occurred on March 1, 2015, Assistant Police Chief Mitchell Kanehailua said Tuesday. He wasn’t promoted to sergeant until Nov. 16, 2016, more than a year after the fatal crash.
On Tuesday evening, De Lima said it’s not a matter of when Sgt. Jackson was promoted.
“At the time of trial, the prosecuting attorney’s husband is in a position of supervision over those coming in to testify,” De Lima said.
Originally, De Lima states he did not plan to pursue the conflict of interest argument since a plea agreement was being discussed with the prosecutor. According to the motion, during the pretrial conference on March 21, Jackson suggested that she would view favorably an offer where the defendant would plead to first-degree negligent injury.
“However, after the offer was transmitted in writing, the assigned DPA denied the offer stating that her supervisor, Prosecutor Mitch Roth denied the offer,” the motion indicates. “No basis was provided for the denial.”
On Tuesday, Roth said he didn’t think the offer was appropriate.
In the motion, De Lima cites another case involving the Hawaii Police Department, in which Roth forwarded to the State of Hawaii’s Department of the Attorney General.
On March 2, the department forwarded a case of missing drug evidence to the prosecutor’s office. A former detective is a person of interest in the crime.
Hawaii County has recused itself from the case to avoid the appearance of impropriety or conflicts. It has since been forwarded to the AG’s Office. Honolulu County Prosecutors were assigned the case.
Roth said there were different factual situations in the cases De Lima cites.
The motion also indicates that the estate of the decedent has filed a civil lawsuit against Buddemeyer and Hawaii County.
“The office of the prosecuting attorney has a conflict of interest being that the outcome of this criminal case will materially affect the County of Hawaii’s exposure to civil liability,” the motion states. “This incentive would adversely affect the Office of the Prosecuting Attorney’s handling of this matter being that the judgment would likely be satisfied by the County budget, thus affecting the funding of the Hawaii County Office of the Prosecuting Attorney.”
De Lima states the concern arose after they couldn’t understand why there was a recusal in the case with the missing drug evidence and not in Buddemeyer’s, as they both involve police officers.
“It surprised me they haven’t recognized the obvious conflict of interest,” De Lima said.
First Deputy Prosecutor Dale Ross said the state will be filing its opposition to the motion next week.
Buddemeyer pleaded not guilty in October 2016 to charges of first-degree negligent homicide, tampering with physical evidence and making a false report to law enforcement in connection with the fatal 2015 crash that killed Jeffrey Surnow, a 69-year-old visitor from Michigan.
Police say Buddemeyer was on-duty and operating a subsidized patrol car eastbound when his vehicle struck and killed Surnow as he rode his bicycle east up Waikoloa Road. The collision, which Buddemeyer reported at 6:25 a.m., occurred near mile marker 11.
A police misconduct report, which does not include names, said an officer was terminated in 2015 for tampering with the scene after being involved in a traffic fatality. Buddemeyer is no longer on the department’s sworn personnel list.
First responders with the Hawaii Fire Department initially reported the incident as a hit-and-run after Surnow was found lying face down near a “severely damaged” bicycle on the road’s shoulder. They noted he had died prior to their arrival.