A
man who is perhaps best known as a gadfly among county officials won his
case yesterday, because Kauai prosecutors interfered with a court order.
Krstafer Pinkerton, a computer and network analyst and resident of Koloa
with a Web site and blogs that critique the Kauai police department,
prosecutor’s office and the county’s legal processes, was declared a free
man yesterday.
Circuit Court Judge Kathleen Watanabe found Pinkerton had been denied his
right under Rule 48 to have a trial within six months due to a prosecutor
interfering with a court order.
Due
to Prosecutorial Misconduct, all charges, which include 2 counts of assault
on two police officers, DUI, criminal property damage, open container
violation, and resisting arrest, have all been dropped "With Prejudice".
According to court records, the County of Kauai Prosecutors had charged
Pinkerton with enough crimes to put Pinkerton in prison for nearly 25
years.
A
district court case against Pinkerton was also dropped “With Prejudice” in
August by District Court Judge Trudy Senda based on the same infraction. The
charges he was arrested on for the District Court case was Terroristic
Threatening in the first degree and Intimidating a Witness, the alleged
victim was also a Kauai Police Officer. Those charges were later dropped to
a harassment charge despite Pinkerton’s plea for a jury trial. According to
state law, there is no jury trial for harassment charges.
Dan
Hempey, Pinkerton’s attorney, said in court that his client had suffered
more than a violation of Rule 48 but had also been denied several civil
rights.
According to court documents, a letter from the Prosecuting Attorney’s
Office dated May 23, 2006 offered Pinkerton two days to accept a plea deal
to cover a total of 3 separate arrests, 4 felonies and 5 misdemeanors,
dismissed without prejudice.
The
deal was based on several conditions, including his waiving of the right to
Rule 48, to withdrawing civil claims against the County of Kauai, to sign
releases of liability for any and all of it's various departments , to take
down his Web site kpinkerton.com, to disclose how he obtained the screen
captures from the police records management system that he is displaying on
his website, to write letters of apology to the police officers in question
and agree to moving away from Kaua‘i within 60 days of May 23, 2006.
Pinkerton said "no".
According to Pinkerton’s
website, Pinkerton claims of police conspiring
against him for his discussions with former Kauai Chief K.C. Lum to purchase
and planning the installation of GPS modules in police cruisers.
Through an alleged malicious pattern of practice by Kauai Police Officers,
Pinkerton had been arrested twice before on other interesting charges,
Pinkerton also claims that his audio recorder and GPS antennae were stolen
when he was beaten up by police “who had no probable cause” to approach him
when he was charged for 2 counts of Assault on Police officers, Resisting
Arrest, Criminal Property Damage, DUI, Illegal Storage of and Intoxicant.
“This case started with an arrest, then went to (Pinkerton’s previous
attorney), then to a plea offer to dismiss the case entirely if he would
take down his Web site and move,” Hempey said.
“He
says ‘No’ and wants his right to a trial, and he gets indicted again — and
the state makes the mistake of thinking the indictment clock starts over.
But it doesn’t,” Hempey said.
Though both the prosecution and defense agreed 148 days of the 180-day limit
had been clocked when tallying Rule 48, 35 remaining days remained for
Watanabe to divvy out.
At
the crux of the issue was the timeline of a motion filed by Deputy
Prosecuting Attorney Marc Guyot and granted by Watanabe Nov. 20, 2006,
requesting a mental and penal responsibility examination of Pinkerton.
Watanabe had granted the motion with a two-week deadline.
Court records show the order was filed Dec. 14, meaning prosecutors didn’t
meet that deadline, Hempey said. Even if they had, he argued, only half of
the order had been set in motion.
That’s because prosecutors had “unilaterally told (the doctor) to only do
the mental portion of the examination and not do the penal responsibility
section,” Hempey said, deducing that a delay of Rule 48 happened “because of
Marc Guyot’s’ prosecutorial usurpation of the court’s authority.”
“That delay was caused by the prosecutor telling the doctor to
ignore half a court order. I can’t think of anything more egregious in
terms of delaying a case than (Prosecutor Marc Guyot) going behind a court
order and telling someone not to follow it. That caused the delay. The 704
proceedings did not cause the delay”, Hempey said.
But
prosecutors maintained their office had filed the order prior to Dec. 14,
despite the absence of a record.
Though there weren’t minutes or court records to that effect, First Deputy
Prosecutor Christopher Bridges said Guyot had written a note in his file
stating he had processed the order before Dec. 14 and that it had been
rejected and he was forced to resubmit it on the latter date.
But
Hempey said a note written in a prosecutor’s file shouldn’t be considered an
official record.
“I
don’t want to be glib,” Hempey said. “But I don’t think a note from Mr.
Guyot in the file relayed to the court by Mr. Bridges satisfies their burden
of proof. This is the problem with recharging a guy in the middle of the
time clock.”
Watanabe said after investigating on her end, the order had been
expeditiously executed.
“This court takes great pride in moving orders out of its chambers,”
Watanabe said. “If this court were responsible for what basically attributed
to the delay of Mr. Pinkerton I’d be the first to admit it,” she said. “In a
matter of 24 hours the order was turned around by this court.”
With
all those factors in mind, Watanabe said Pinkerton’s case had used up 198
days, thus precluding him from being within the allotted amount of time to
proceed to trial.
According to court records, the original date of arrest was March 5, 2006
and calculating the time from arrest to the time of this hearing has been
583 days or 1 year, 7 months, 4 days.
583
days can be converted to one of these units: 50,371,200 seconds or 839,520
minutes or 13,992 hours.
“Given the circumstances which contributed to the delay by the prosecutor’s
office — the delay in submitting the order for court but
moreso the delays
caused by interference of a court order
— the court’s granting the dismissal with prejudice,
Mr. Pinkerton, you are hereby discharged, these charges cannot be brought
against you again"
Watanabe said.
[emphasis added
by PINKERTON]
Original Text Void of Emphasis:
http://www.kauaiworld.com/articles/2007/10/10/news/news03.txt
