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‘No Evidence To Convict’: Jury Foreman Explains Acquittal In Kaneshiro, Mitsunaga Trial

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‘No Evidence To Convict’: Jury Foreman Explains Acquittal In Kaneshiro, Mitsunaga Trial

May 19, 2024 | 9:17 pm ET
By Christina Jedra/Civil Beat
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Former Honolulu prosecutor Keith Kaneshiro, with attorney Birney Bervar, said on Friday he felt vindicated by the verdict. (David Croxford/Civil Beat/2024)
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Former Honolulu prosecutor Keith Kaneshiro, with attorney Birney Bervar, said on Friday he felt vindicated by the verdict. (David Croxford/Civil Beat/2024)

After two months of testimony, some of the 12 jurors in Honolulu’s latest public corruption trial thought the defendants were guilty, jury foreman S. Keli’i Kai Paleka told Civil Beat in an interview.

Some believed that Honolulu businessman Dennis Mitsunaga and his associates really had bribed county prosecutor Keith Kaneshiro to file theft charges against Mitsunaga’s ex-employee, Laurel Mau, Paleka said. 

But the jury was under instructions to convict only based on the evidence. And throughout the trial, the group waited and waited for “smoking gun” proof of a quid pro quo that never came.

After a day and a half of deliberation, the jury determined the case had not been proven beyond a reasonable doubt. 

“There were many instances where the majority of us were thinking: The next question, the next email, the next witness — the shoe is going to drop and the evidence is going to be there,” Paleka said. 

“But for all 12 of us, for every defendant and every count, it stayed muddy and blurry.”

When deliberations began, only four people voted “not guilty.” The rest believed at least some of the defendants could be guilty on some counts, Paleka said. But after discussions in which they read the jury instructions, reviewed the evidence and challenged each other’s positions, Paleka said, everyone came to an agreement.

“Some of us do believe that they’re completely innocent,” he said. “Some people believe that they are guilty. The issue was there was no evidence to convict.” 

That came as welcome news to all six defendants who were each charged with two counts of conspiracy: Kaneshiro and Mitsunaga as well as Mitsunaga associates Aaron Fujii, Chad McDonald, Terri Ann Otani and Sheri Tanaka. All six were facing the prospect of up to 15 years in prison.

‘Grasping At Straws’

The verdict was an incredibly rare outcome for a federal prosecution. In 2021 and 2022, the vast majority of federal criminal cases resulted in guilty pleas, according to the Pew Research Center. Of the cases that went to trial, more than 80% resulted in a conviction. 

But in this case, the San Diego-based prosecution team led by Special Attorney Michael Wheat provided only circumstantial evidence that Kaneshiro and Mitsunaga’s team had reached a corrupt agreement to prosecute Mau. There were no witnesses and no documents demonstrating an explicit deal.

Paleka noted Mitsunaga and Kaneshiro exchanged only a single phone call that lasted one minute. And none of Kaneshiro’s former subordinates testified their boss pressured them to pursue the Mau case. Instead, two ex-deputy prosecutors said they genuinely believed the case had merit. 

“When your own witnesses are not reporting what you’re trying to convict of, you’re grasping at straws,” Paleka said. 

The jury was presented with witnesses and documents outlining a long and tangled tale: how Mitsunaga had fired Mau from his firm, Mitsunaga & Associates Inc. in 2011; how the firm came to accuse Mau of theft for doing side jobs on company time; and how the firm’s pursuit of Mau’s prosecution coincided with some $50,000 in campaign contributions to Kaneshiro. 

But enough concerns were raised about Mau’s conduct during the trial to give the jurors a sense of why Mitsunaga’s team would pursue a criminal case against her, he said. 

“Were they just trying to get justice for what they feel had been done to their family-esque business?” he asked. “We thought there is more circumstantial evidence against Laurel Mau, and it was more clear than the circumstantial evidence against the defendants.” 

And when it comes to campaign contributions, Paleka said, they’re generally legal.

“By law, you can contribute and hope something happens,” Paleka said. “It’s not against the law until there is an agreement. So while the jury had mixed emotions about that, we tried to curb it because we all believe that there was no specific agreement, quid pro quo.” 

Jurors considered several other factors as well, Paleka said. 

While the supposed investigation by Kaneshiro’s office into the Mau case was really “repackaged” material from Mitsunaga’s firm, Paleka said, a state court judge signed off on it as having probable cause.

“A judge found probable cause, so it was OK,” he said. 

Prosecutors noted that the Mau case was initially rejected by an earlier state court judge for lacking a declaration from a law enforcement officer. But a trial witness pointed out that there is no legal requirement for such a declaration, Paleka noted. 

The defense also pointed out that federal prosecutors had waited years to charge the defendants and were coming up on the statute of limitations. 

“They had been looking at this case for so long that if they couldn’t find clear evidence to support their charges beyond a reasonable doubt, then how could we, in good faith, in good conscience, say that they did a good job and say guilty?” 

Perhaps the best piece of evidence the prosecution had, in Paleka’s view, was a misleading declaration from McDonald. The declaration stated Rudy Alivado had paid Mau for work on his Kaneohe home with the intention of that money going to Mitsunaga’s company. Since Mau kept the money, the claim supported the Mitsunaga firms’s allegation of theft. But in fact, Mitsunaga’s company had always done work for Alivado for free due to his close friendship with Dennis Mitsunaga. And Alivado admitted during trial that his earlier statements were false.

“They knew it was a lie,” Paleka said.

Even still, it wasn’t enough to hinge the entire case on, according to Paleka.

While the defense attorneys did their jobs to present counter-arguments and mount objections throughout the trial, Paleka said it almost wasn’t necessary. 

“We’re waiting for clear and concise evidence that something happened. And then at the end of the day, we all generally thought that the prosecution strung together a lot of circumstantial evidence,” he said. “The defense almost didn’t have to say anything because their story by itself was very circumstantial.”

The members of the jury, he said, “were already shooting holes in it.” 

As for mid-trial allegations of witness tampering by Mitsunaga, Paleka said the jury didn’t give it much weight. Again, the jurors referred to the jury instructions and the charged crimes. 

“Witness tampering had nothing to do with the case as far as the counts,” he said. 

Room For Reasonable Doubt

The jury’s deliberations were aided by the close bond the jurors had formed over the last two months, Paleka said. They cracked jokes, brought in food for each other and courtroom staff, and even color-coordinated their outfits. That camaraderie came in handy when having an open and honest deliberation, according to Paleka. 

“It was my job to bring everybody together just to continually point out: You feel this way about him or her, and you believe either this count or that count, they’re guilty. Show me the evidence,” he said. “And people would come up with great evidence.”

But others would raise alternate points of view, he said, and the picture became less clear.

“And then myself or somebody else would say: OK, now that you’ve heard two or three other ways to take it, does that create reasonable doubt? And everybody who thought they were guilty were like, well, yeah, it does.” 

A 20-year Army veteran with a master’s in criminal justice, Paleka, 42, said it was his first time serving on a jury. 

Looking back on the experience, he said, a moment during jury selection seemed to foreshadow the verdict.

The prosecution asked prospective jurors: If they were presented with circumstantial evidence, could they infer something happened? They proposed an example, Paleka said. If you walk out of the courthouse and the grass, the sidewalk and the road is wet, could you infer that it rained, even if you weren’t there to see it rain? Many jurors said yes.

“Well, I raised my hand, and I was like, no. What if the sprinkler system went off? What if somebody crashed into the fire hydrant?” Paleka recalled. 

“He kind of foretold that they’re going to talk about a lot of circumstantial evidence. And will we be able to come up with the same story as him?” 

In this case, the answer was no.