The State built its record through witness testimony, numbered exhibits, and arguments in court. Defense counsel had to respond through cross-examination, objections, offers of proof, motions, testimony, consultation, and preservation of issues for review.
Privately retained counsel represented me in a felony jury trial. I paid the additional trial fee because I wanted the case tried and repeatedly rejected a plea.
After Kanemoto’s mock-pistol closing, the judge immediately called counsel into chambers. No mistrial motion was made in my presence. While the same jury continued deciding the felony case, counsel pressed a petty-misdemeanor plea. I refused and wanted the jury to finish. He kept pressing.
The jury hung. Counsel told me there would be another trial, then called back about a day later sounding pleased and said the prosecutor would not retry. I later obtained an expungement.
His file could show what happened in chambers, what remedies he considered, when the plea became available, and what he explained to me.
Editorial anonymization: The lawyer remains identified only as Retained Trial Counsel. The investigation concerns conduct, incentives, records, and professional duties.
I. The Client Owned the Objective
In a criminal case, counsel controls many tactical choices. The client decides whether to plead and, after consultation, whether to testify. Hawaiʻi Rule of Professional Conduct 1.2(a), in force during the 2017 trial period, assigns those decisions to the client.1 Tachibana v. State recognizes the decision whether to take the stand as the defendant’s personal constitutional right.2 That right does not make every subject the defendant wants to discuss admissible.
I wanted a jury trial. I repeatedly rejected a plea, told counsel to stop pressing it, and testified at trial. I wanted the jury to hear about the earlier pressure that explained my state of mind during the November 2015 tax-office encounter. The pressure that came afterward affected my defense preparation and willingness to disclose what had happened.
Counsel had to advise me, test the State’s case, identify available remedies, explain material developments, and exercise independent judgment in my interest.
I want the records to answer six questions.
- What did counsel tell the jury in opening?
- What did he do with the state’s principal witness?
- What advice did he give me about the content of my testimony, and how was my decision to omit a subject recorded?
- What remedies did he consider after the mock-pistol closing?
- What information did he give me before pressing the petty-misdemeanor plea?
- Did counsel’s own financial or personal interests foreclose a course that reasonably should have been pursued for the client?
The sixth question comes directly from Hawaiʻi conflict doctrine.
II. The Fee Structure and the “Tight Trial”
My retainer had two tiers: $6,000 for plea representation and $8,000 for a full jury trial. Plea representation accounted for 75 percent of the maximum stated fee. The additional fee for taking the felony through a jury trial was $2,000.
A more favorable plea position already existed when I paid the extra $2,000 and chose trial.
Before trial, counsel told me, in substance, that the judge preferred a “tight trial.” I heard that before the decisions about my testimony, the response to the mock-pistol closing, and the plea pressure during deliberations. The remark does not tell me why he made those choices.
The fixed-fee agreement said nothing about retrials. What would a second trial require of counsel, what additional fee could he collect, and could he withdraw? Those questions mattered once the closing raised the possibility of a mistrial.
Comment [5] to Hawaiʻi Rule of Professional Conduct 1.5, in force in 2017, warns against fee terms that could lead a lawyer to cut services improperly or act against the client’s interests. It also addresses the need to explain foreseeable additional work to the client.3 Whether the fee was reasonable and whether its terms affected the defense are separate questions. The retainer and counsel’s file could show whether the prospect of unpaid retrial work affected his preparation, choice of remedies, advice, or continued pressure to plead.
The retainer and engagement correspondence could establish whether a second trial would bring new compensation or unpaid work:
- New compensation: a second trial would carry a defined, collectible fee, with a practical way for counsel to continue or withdraw. That would weaken the financial explanation for avoiding retrial.
- Unpaid work: a second trial would require substantial additional work without materially new compensation. A mistrial would then extend the prosecution at counsel’s expense.
If another trial meant substantial unpaid work, a remedy that benefited me could cost counsel.
III. Trial Choices Before Closing
Opening
By trial preparation, my working relationship with counsel had deteriorated. He continued pressing for a plea despite my repeated refusals and advised against including the Hartmann death threat in my testimony. During preparation, he told me he was counting on me looking guilty.
Counsel opened with words to the effect of:
“Maybe he did it.”
The transcript controls the exact language and context. Counsel introduced the possibility of my guilt before testing the State’s witnesses.
The complaining tax official
The complaining tax official supplied the state’s account of the unrecorded booth encounter at the center of the prosecution. No neutral witness was inside the booth. Kwak’s charging accusation about what I said was false. The encounter involved a demand for about seven times what I owed, escalating pressure inside a tiny enclosed booth, and my frantic attempt to surrender property and expose what was happening.
Retained Trial Counsel’s cross-examination was cursory and did little or nothing to test the central dispute.
At trial, Young Kwak testified, in substance, that he merely told me which form to fill out. That did not happen. I immediately told Retained Trial Counsel that Kwak had lied and that no such exchange had occurred. Counsel replied, in substance, that the point was not material and was not perjury. The transcript can establish Kwak’s exact words.
Kwak’s earlier account was presented to the grand jury that indicted me. By trial, the State’s presentation had changed. I had already denied the accusation to counsel. The State did not put it before the trial jury or play the recordings of my distress. Kwak instead described a routine exchange about a form. The Hypothetical Gun compares the accounts in detail. I have not confirmed whether the separate distress recordings were played to the grand jury.
Keeping that material from the trial jury could have had a tactical benefit. That decision did not resolve how counsel should challenge the false form account I had just identified.
To me, counsel let the earlier account disappear without seriously testing the routine exchange Kwak described in its place. Comparing Kwak’s prior statements and checking when the form detail first appeared could have tested his credibility. Counsel could also have examined the payment demand and sequence, then sought a ruling outside the jury’s presence before deciding how to use an inconsistency or recording. The court might have limited or excluded it; selective use or redaction was not guaranteed.
Before trial, I had asked counsel to obtain a photograph of the actual booth for use as an exhibit. He did not obtain or use it. The booth was tiny, enclosed, and claustrophobic. The State’s diagram made it look substantially larger and more comfortable. The jury saw that diagram without the photograph I had asked counsel to obtain.
In State v. Tetu, decided in December 2016 before my trial, the Hawaiʻi Supreme Court recognized reasonable defense investigation as part of effective assistance. The case concerned access to a crime scene and discussed photographs and measurements.4 It supports examining how counsel investigated the booth’s dimensions and the State’s diagram. It does not establish that he had to obtain the particular photograph I requested.
Counsel’s answer about perjury left the credibility problem unanswered. Hawaiʻi law in 2017 also had a separate false-swearing offense for knowingly false sworn statements in official proceedings, without the materiality required for felony perjury. Whether it applied depends on its other elements, including whether the speaker believed the statement was true. The Hypothetical Gun sets out the statutory and evidentiary analysis.
I want the file and trial record to answer these questions.
- Did counsel compare Kwak’s testimony with his earliest complaint, grand-jury testimony, investigator interviews, and other prior accounts, and what did he do with the differences between the charging and trial presentations?
- What investigation followed my immediate statement that the form testimony was false?
- Was the statement tested through impeachment or credibility cross-examination?
- What legal analysis supported counsel’s response that the point was immaterial and not perjury?
- Did counsel inspect the booth or assign anyone to photograph or measure it?
- Why was my requested photograph not obtained?
- Did counsel challenge the diagram’s foundation, accuracy, scale, or capacity to mislead?
- What tactical reason, if any, did counsel document for not obtaining the requested photograph, and what other steps did he take to challenge the State’s diagram or explain its limits?
Rules 1.1 and 1.3 require reasonably necessary preparation and reasonable diligence.5 Those duties apply to counsel’s investigation of the witness and the booth.
Under Briones v. State, an ineffective-assistance claim requires specific errors or omissions reflecting deficient skill, judgment, or diligence that withdrew or substantially impaired a potentially meritorious defense. The court considers their possible rather than probable effect and respects choices with an obvious tactical basis benefiting the defendant.6 An obvious tactical benefit can protect the decision to keep damaging material out. It does not automatically justify failing to investigate and pursue safer ways to test the State’s case. In Aplaca, the court rejected a strategy explanation that lacked adequate investigation.7
My case ended in a hung jury and no retrial. This review concerns his professional performance, not a pending post-conviction claim.
The transcript can show what counsel asked, how extensively he questioned Kwak, and whether he tested the words attributed to me, the payment calculation, the booth circumstances, the witness’s prior accounts, and the physical sequence.
My testimony and counsel’s advice
I testified at the July 2017 trial. While I was under indictment and investigating matters for my defense, I intended to disclose what I was uncovering. That included the Hartmann episode and the surrounding pressure history described in Before the Tax Office and my report to appointed counsel.
Retained Trial Counsel advised against including that event. I followed his advice and did not testify about it. By trial, Kevin’s warning was also still affecting my willingness to disclose it, as described in Before the Tax Office.
I assess that advice together with his handling of Kwak and the booth evidence. The separate witness-intimidation and extortion questions appear in the primary account.
Then Kanemoto gave his closing argument, and the judge called counsel into chambers.
IV. The Mock Pistol and the Chambers Turning Point
After Kanemoto’s mock-pistol closing, the judge immediately called counsel into chambers. The Hypothetical Gun describes Kanemoto’s words and gesture. Here I examine counsel’s response and the plea pressure that followed.
No mistrial motion was made in my presence.
I recall the judge instructing the jury to disregard the mock-pistol episode. The Hypothetical Gun examines that response and the prejudice standard. The transcript should establish the instruction’s wording and timing.
That jury was still deciding whether to convict me of a felony. The argument raised a concrete question for counsel: was the instruction sufficient, or should he seek a mistrial or further relief? State v. Lagat places a mistrial ruling within the trial court’s discretion.8 A request could have been denied; if granted, it could have led to another trial. I needed counsel to explain those options and the consequences of continuing before that jury. His file and the trial record could show how he assessed the instruction, what relief he considered or sought, and what he explained to me.
My later insistence that the jury finish does not establish what counsel had explained after chambers or whether I knowingly chose to forgo any available relief.
The judge, prosecutor, and defense lawyer all saw the closing. The judge’s immediate response made clear that it required discussion.
The lawyers knew more than I did about mistrial standards, preservation, curative remedies, appellate consequences, professional-responsibility exposure, bargaining leverage, and the consequences of retrying a completed felony case.
I saw the gesture and the judge’s reaction. I depended on counsel to explain what they meant for my legal position.
The transcript can establish Kanemoto’s words, any objection, interruption or recess, reference to chambers, and jury instruction. It may say nothing about his hand gesture. A recording, contemporaneous notes, or another witness could support or contradict my observation of it.
Counsel’s file could show which options were discussed in chambers and immediately afterward:
- objection and preservation;
- curative instruction;
- mistrial;
- putting the incident on the record outside the jury’s presence;
- use of the episode in post-trial or appellate proceedings;
- any professional-conduct implications counsel considered; and
- plea negotiations at that time.
I needed to understand my options after the closing before deciding whether to accept the plea counsel pressed during deliberations instead of waiting for the jury’s verdict.
V. Client-Owned Leverage, Lawyer-Controlled Information
The mock-pistol event belonged to my case. Any leverage created by it belonged to the client.
I depended on counsel to explain how the closing affected my options. A personal interest in ending the case could affect both his choice of remedies and the advice he gave me.
Choice of Remedies
Did a personal interest in ending the case affect counsel’s decision to seek or forgo a mistrial, preservation, or other relief?
If retrial meant substantial unpaid work, counsel’s financial interest could conflict with mine. A successful mistrial request could take the case away from the jury that had seen the mock pistol and require counsel to try it again. An accepted petty-misdemeanor plea would end the case. His retainer and file could show whether the cost of retrial affected the remedies he pursued or the information and advice he gave me.
Advice to the Client
If counsel had that interest, did it affect what he told me about the mock-pistol event and my alternatives before pressing a plea?
Rule 1.4 requires enough information for the client to make informed decisions. Its commentary says a lawyer may not withhold information to serve the lawyer’s own interest or convenience, or another person’s interests.9
I needed counsel to explain the significance of the closing, the available remedies, and what I would gain or give up under each option. He could recommend a course; I controlled whether to accept a plea.
“Client-owned leverage” describes the client-lawyer relationship in agency theory; it claims no separate legal property right. My authority over a plea had little practical value without enough information about the leverage I would give up.
If counsel’s advice failed me, finding and paying for independent advice would fall to me while the case was still underway.
The Repeat-Player Problem
I bore the criminal consequences while the lawyers continued working in the same courts. Professional goodwill and avoiding friction can have value without a payment or bargain. But ordinary professional contact does not establish a Rule 1.7 conflict. That requires evidence of a particular interest that materially limited counsel’s judgment. The retainer and expected cost of retrial provide the more concrete inquiry here.
Marc Galanter’s repeat-player framework explains how continuing participants accumulate experience, relationships, and strategic information unavailable to a person facing one prosecution. A lawyer’s interest in future work and institutional goodwill can differ from a client’s interest in contesting the prosecution.10 The retainer, client communications, chambers accounts, and anticipated retrial costs could show whether those interests materially affected counsel’s advice or choice of remedies.
VI. The Petty-Misdemeanor Offer as an Observable Concession
During deliberations, counsel presented a petty-misdemeanor plea to me. The State was asking the jury for a felony conviction. The records need to show whether the offer already existed on the same terms or materially changed at this stage.
The offer’s timing matters:
When exactly did the petty-misdemeanor offer originate or materially improve, and did the change follow the mock-pistol closing and chambers conference?
The records could distinguish three possibilities:
- P1 — Preexisting and unchanged: the petty-misdemeanor offer already existed on the same terms and remained actively available before the closing.
- P2 — Preexisting but revived: the offer existed earlier but was revived or newly emphasized after chambers.
- P3 — New or materially improved: the offer originated or materially improved after chambers.
P1 would weigh against the claim that the closing caused the concession. P2 would show that an existing offer was pressed again after chambers. P3 would require comparing the new or improved terms with what happened in chambers. Timing alone would not explain why the offer changed.
Ordinary plea-bargaining model
Under this explanation, the offer existed before the closing or changed because of ordinary concerns about the verdict, unrelated to chambers. Counsel conveyed a favorable plea and strongly recommended it to protect me.
Containment model
The judge called counsel into chambers immediately after the mock-pistol event. Under the containment model, the lawyers understood that event to carry possible mistrial, preservation, professional-responsibility, or other remedial exposure.
Counsel pressed the petty-misdemeanor plea as a way to end the case. The records could show whether it had remained available unchanged, was revived after chambers, or was newly created or materially improved then. Acceptance would end the trial, remove mistrial and retrial risk, and reduce both the need to litigate the closing and its future importance.
For counsel, this explanation turns on whether ending the case served a personal interest. A plea ends the representation at the moment a mistrial could extend it into another felony trial.
This explanation requires no express side agreement. The participants could recognize that the closing required immediate discussion and favor the same outcome for different reasons.
Counsel could not enter a plea for me.
VII. The Veto Player on the Courthouse Bench
I rejected the petty-misdemeanor offer. I wanted the jury to finish.
Rule 1.2(a) put that decision in my hands.1
Counsel kept pressing.
The confrontation moved to a courthouse bench while the jury deliberated. I was praying. Counsel scolded me, saying in substance that he did not “believe in that religion stuff”, while continuing to push the plea.
I had already refused the plea. Counsel kept trying to reverse my decision while twelve jurors were deciding the case.
The prosecutor could offer reduced charges and counsel could recommend acceptance. A plea could also avoid the cost and uncertainty of another trial. But it required my consent.
Counsel’s continued pressure showed how strongly he wanted me to accept. His file could help establish whether he was acting solely to protect me, whether his own interest in ending the case affected his advice, or both. The judge’s reasons for any decisions in chambers require a separate account.
Counsel’s notes and any courthouse witnesses could establish what he recorded, what I said, and how he continued the discussion after I refused.
VIII. The Hung Jury and Expected Retrial
Counsel closed with a broad political argument against government power. The jury hung. That outcome did not establish that counsel’s preparation and presentation were adequate, or that Kanemoto’s mock-pistol argument was harmless. The investigation concerns what counsel presented, what he failed to challenge, and what the court and counsel did in response to the prosecutor’s closing. Those decisions remain subject to scrutiny regardless of the jury’s inability to reach a verdict.
Counsel did not know the jury would hang when he went into chambers after the closing. The eventual outcome cannot explain what relief he considered then, what he told me, or whether a personal interest affected his advice or his decision to seek or forgo relief while a felony conviction remained possible.
A plea would have ended the case. The hung jury prevented a felony conviction and preserved my claim of innocence. The prosecutor had no conviction and had to decide whether to retry; the case remained unresolved for the judge, and counsel’s representation continued.
Immediately afterward, counsel told me, in substance, there would be another trial.
About a day later, counsel called again sounding pleased and reported that the prosecutor was “spooked” and would not retry the case.
Counsel expected another trial and sounded pleased when it was no longer going to happen. His reaction alone cannot distinguish relief for me from a personal interest in ending the case. The retainer and his file could help answer that question.
Rule 8.3(a) required counsel to inform the appropriate professional authority if he knew of another lawyer’s rules violation raising a substantial question about honesty, trustworthiness, or fitness. Rule 8.3(c) excludes information protected by Rule 1.6.11 Did he evaluate what he witnessed against that standard? I do not know whether he made a report. His file could show his assessment, any confidentiality issue, and any reporting or consultation.
Retained Trial Counsel did not advise me that I could file a disciplinary complaint concerning Kanemoto’s mock-pistol conduct. The trial record could separately establish whether he preserved the incident for appeal. The prosecution ended without a public adjudication of the professional-conduct question.
The ABA Criminal Justice Section’s 2023 Plea Bargain Task Force Report describes trials and pre- and post-trial litigation as essential to public accountability. It warns that police and government misconduct can go unchecked when cases end in pleas before hearings where that conduct could be examined. It also recommends recording the history of plea offers.12 The offer history and counsel’s file could show which remedies he considered after Kanemoto’s closing and what he expected a plea to resolve.
Kanemoto later denied making the gesture when I confronted him in 2019. That denial fits the containment model because an admission would increase exposure and a denial preserves an evidentiary dispute. The denial alone cannot distinguish that explanation from an effort to protect his reputation.
IX. Hawaiʻi Conflict Law and Counsel’s Decisions
Having a financial interest in legal work is ordinary. I am asking whether counsel’s own interest affected an important decision about my defense.
State v. Harter
In its 2014 decision in State v. Harter, the Hawaiʻi Supreme Court examined a lawyer whose professional self-protection conflicted with his client’s representation.13 Drawing on Rule 1.7,14 the court asked whether a personal interest could interfere with independent professional judgment or foreclose courses of action that reasonably should be pursued for the client. Harter involved different facts, but supplies the standard for examining whether counsel’s own interest kept him from pursuing an available course for my defense.
Applied to counsel’s preparation, remedies, and advice, Harter supports asking:
Did any personal interest in avoiding continued litigation, if established, interfere with independent judgment by limiting counsel’s preparation or causing him to forgo or inadequately pursue mistrial, preservation, or other relief that reasonably should have been pursued for me?
United States v. Walter-Eze
The Ninth Circuit asks what plausible alternative strategy went unpursued and whether a competing interest drove that choice.15 The theory requires a specific financial interest conflicting with a course that could benefit the client; an ordinary desire to earn money is not enough. Here, the alternatives include mistrial, curative relief, preservation, putting the incident on the record, and informed plea advice.
United States v. Hearst
In Hearst, the government and defense lawyer supplied plausible tactical explanations for decisions challenged as financially influenced. The Ninth Circuit still required examination of the alleged financial conflict.16 A plausible tactical explanation does not, by itself, resolve the question of a competing financial interest.
People v. Barboza and Winkler v. Keane
The California Supreme Court in Barboza invalidated a public-defense arrangement that financially penalized the defender for identifying conflicts requiring outside counsel.17 The Second Circuit in Winkler found an actual conflict where a criminal defense fee created an economic incentive against pursuing plea or lesser-offense alternatives.18
The facts in Walter-Eze, Hearst, Barboza, and Winkler differ from mine. I rely on them to examine whether a lawyer’s financial interest can impair independent judgment about a particular defense decision.
X. Three Models for the 2017 Endgame
The explanations below need to account for the sequence as a whole, including the chambers conference, plea pressure, and expected retrial.
Model A — Client-centered strategy
Under this explanation, counsel thought the prosecutor’s closing did not warrant a mistrial and the petty-misdemeanor plea was overwhelmingly favorable. He pressed it to protect me. The offer existed or improved because of ordinary trial risks. His notes or account would explain why he rejected mistrial or other relief for my benefit and how he explained the plea’s consequences.
A client-centered explanation must also account for counsel’s investigation before closing, his examination of witnesses, his exhibit choices, and his advice about my testimony. His reason for pressing the plea cannot alone explain those earlier decisions.
Model B — Finality-biased representation
If another trial meant substantial unpaid work or other financial costs to counsel, he would have a personal interest in ending the case. This explanation requires evidence that the prospect affected his decisions after the closing or how strongly he pressed the plea.
If counsel limited preparation to save time or expense, that could connect his earlier choices to his later preference for ending the case. The missing photograph, limited cross-examination, and “tight trial” remark do not by themselves establish that motive. His preparation records, retainer, and account could help answer it.
Model C — Tacit post-closing containment
The judge called counsel into chambers immediately after the mock-pistol event. Under this model, the professionals understood the event to create remedial or professional exposure and favored a plea that would end the case. The petty-misdemeanor disposition was being presented or pressed as that solution; its source and timing remain the key records questions. My refusal blocked it.
A separate decision followed the hung jury: whether the State would retry. This branch asks who authorized the decision against retrial, what Kanemoto recommended, and whether concern about scrutiny of the closing influenced it. A plea would have produced a conviction; declining retrial left the State without one. The Information Trail develops that working theory. Counsel’s remedy assessment, advice, and continued plea pressure require their own examination for any influence of professional or personal interests. The theory does not establish an agreement among the participants.
These explanations can overlap. Counsel’s personal interest in ending the case could be part of Model C.
The models make different predictions:
| Evidence | Model A | Model B | Model C |
|---|---|---|---|
| P1: offer existed unchanged and remained actively available before closing | Strongly consistent | Compatible | Against the concession-origin branch |
| P2: offer existed earlier but was revived or newly emphasized after chambers | Compatible | Consistent | Compatible with ending the case; does not show chambers caused the concession |
| P3: offer originated or materially improved after chambers | Compatible with an ordinary trial-risk explanation | Consistent | Strongly consistent |
| Counsel documented mistrial analysis centered on client interests | Strongly consistent | Against | Against |
| Retainer guaranteed substantial new compensation for retrial | Consistent | Against financial branch | Weakens defense-side incentive |
| Retrial meant substantial uncompensated work | Neutral | Strongly consistent | Strongly consistent |
| Counsel fully explained mistrial/preservation leverage before asking for plea | Strongly consistent | Against information-distortion branch | Against information-distortion branch |
| Counsel pressed the plea after an unequivocal rejection | Requires strong client-centered explanation | Strongly consistent | Strongly consistent with pressure after refusal |
| Materially reduced disposition first appears or materially improves after chambers | Requires ordinary-risk explanation | Compatible | Strongly supports examining the chambers discussion |
| Counsel says another trial will follow after hung jury | Consistent | Shows another trial was expected | Shows another trial was expected |
| Counsel is pleased when retrial disappears | Compatible | Consistent | Consistent |
| Decision records link avoiding professional scrutiny of the closing to the State’s decision not to retry | Requires separate examination of counsel’s advice | Does not establish counsel’s financial motive | Supports the prosecution-side no-retrial branch |
No single item in the table settles the explanation. The records need to be read together.
XI. The Records That Decide It
The transcript, retainer, and counsel’s file can show what he reviewed, investigated, and explained to me, and why he chose the course he did.
| Issue | Primary record | What the record should establish |
|---|---|---|
| $6,000 / $8,000 fee structure | Retainer; payment records | Exact plea and trial scope; $2,000 increment |
| “Tight trial” remark | Client notes; contemporaneous communications; any witness | Timing and context of counsel’s pretrial statement |
| Retrial economics | Retainer; engagement correspondence; billing; withdrawal/substitution record; client-advice notes | Compensation, workload, and withdrawal consequences of a second trial; what counsel explained about foreseeable additional services and whether the fee terms affected his preparation, remedy assessment, or plea advice |
| Professional relationships and future work | Counsel communications; client-advice notes; chambers accounts; retainer and fee arrangements; plea history | Whether continuing professional relationships, anticipated future work, or retrial costs materially affected the advice or remedies counsel chose; compare documented reasons with available alternatives |
| Pretrial statement about looking guilty | Client communications; preparation notes; counsel’s account; any witness to the discussion | Context of the statement, counsel’s intended approach, what he explained to me, and comparison with the opening |
| Opening | Trial transcript | Exact framing of culpability and defense theory |
| Kwak’s disputed form testimony | Trial transcript; earliest complaint; grand-jury material; interview and preparation notes | Exact testimony, chronology of the form detail, differences among accounts, and impeachment |
| Immediate client objection | Counsel file; client communications; contemporaneous notes | My statement that the testimony was false, counsel’s response, and resulting investigation or legal analysis |
| Requested booth photograph / scene investigation | Client communications; counsel and investigator files; inspection notes | Photograph request, assignments, inspections, measurements, and reason no photograph was obtained |
| Prosecution diagram and defense challenge | Exhibit list; diagram; foundation testimony; trial transcript | Evidence or demonstrative status, accuracy claims, scale, dimensions, objections, and tactical explanation |
| Actual booth versus trial depiction | Photographs; measurements; floor plans; agency facility records | Booth dimensions, exit, participant positions, and differences from the State’s depiction |
| Complaining-witness cross | Trial transcript | What counsel asked, how extensive the examination was, and which disputed elements of the state’s account were actually tested |
| Exclusion and alternative impeachment | Discovery records; counsel file; admissibility motions and rulings; client communications | What counsel reviewed, why he kept charging material out, and what other means he investigated and pursued to challenge Kwak |
| Defense closing | Closing transcript; preparation notes and client consultation, if recorded | Evidence used, choice of political theme, alternatives considered, and connection to the defense developed at trial; no assumed causal credit for the hung jury |
| Advice about my testimony | Trial transcript; counsel notes; client communications; admissibility research | My trial testimony, counsel’s advice about the Hartmann episode, the risks and benefits he explained, his admissibility assessment, and my decision not to include it |
| Spoken closing and immediate interruption | Closing transcript; minute entries; courtroom record | Exact language, objection, interruption or recess, chambers reference, exact wording and timing of the instruction I recall, mistrial request |
| Visual mock-pistol gesture | Courtroom recording if any; contemporaneous notes; accounts from people present | Whether the hand gesture is independently corroborated |
| Chambers discussion | Counsel/prosecutor notes; on-record reconstruction; judge’s notes if preserved and accessible | Remedies discussed, plea discussion, and chronology |
| Counsel’s reporting-duty assessment | Counsel notes and communications; any reporting or consultation records lawfully available | What counsel knew, whether he evaluated Rule 8.3(a), any Rule 1.6 limit, and whether he made a report |
| Petty-misdemeanor offer’s source | Plea emails, texts, notes, prosecution file, counsel file | Whether the offer was preexisting and unchanged, revived or re-emphasized, or newly created or materially improved; who proposed any change |
| Information supplied to me | Counsel notes; client communications; witness testimony | What counsel explained about the instruction’s adequacy, mistrial, preservation, leverage, and the plea tradeoff |
| Bench confrontation | Counsel notes; client account; courthouse witnesses | Pressure after rejection and the prayer remark |
| Hung-jury retrial expectation | Calls/messages; engagement file | Counsel’s expectation of another trial and anticipated compensation/workload |
| No-retrial call and State’s decision | Calls/messages; prosecution communication; retrial recommendations, authorization, and recorded reasons | Basis for the “spooked” report; who decided against retrial; Kanemoto’s recommendation; whether concern about scrutiny of the closing influenced the decision |
| Conflict process | Conflict check; disclosure; waiver; file | Whether counsel identified and addressed any financial or personal material limitation |
Records that would materially change the analysis
Primary records control the sequence. The most consequential findings would be:
- proof that the petty-misdemeanor offer existed on the same terms, remained actively available, and predated the mock-pistol closing;
- a recorded mistrial motion, curative request, or preserved objection materially different from my account;
- counsel notes documenting a client-centered reason for forgoing mistrial after a full explanation of the available leverage;
- a retainer provision establishing substantial new compensation for any retrial;
- communications showing I received a full explanation of mistrial, preservation, and plea consequences before counsel pressed the plea; or
- records tying the petty-misdemeanor concession directly to the chambers conference.
Those records could distinguish informed advice in my interest from decisions affected by counsel’s own interests.
Source and Response Note
This article combines my firsthand account with legal authorities and the three explanations above. The transcript and minute entries can test what happened in court. The defense file, retainer, plea chronology, communications with me and the prosecutor, and records of chambers could show counsel’s preparation, advice, and actions outside my presence. Those records could support or contradict my account.
Any participant with records that materially alter the chronology may respond through the site’s Corrections Policy. Documentary corrections will be incorporated with the source identified.
The header image is generated editorial artwork depicting a generic empty defense table and courtroom. It contains no image of the actual courtroom, lawyer, judge, juror, or trial event. Image credit: generated editorial artwork for Oahu Underground / GTCode, October 3, 2026.
Sources and Notes
Hawaiʻi Rules of Professional Conduct, Rule 1.2(a), Scope of Representation and Allocation of Authority Between Client and Lawyer. The rule assigns the decisions whether to plead, waive jury trial, and testify to the criminal defendant after consultation with counsel. Official Hawaiʻi Judiciary rules PDF, HRPC–8, relevant page release December 2015 in the archived compilation. ↩︎ ↩︎
Tachibana v. State, 79 Hawaiʻi 226, 900 P.2d 1293 (1995), section II.A, opinion. The right to testify is personal to the defendant; the court addressed protection of that right when the defendant does not testify. I did testify. The issue raised here concerns advice about an omitted subject, not a claim that I was prevented from taking the stand. ↩︎
Hawaiʻi Rules of Professional Conduct, Rule 1.5, Comment [5], printed pp. 19–20 (PDF pp. 20–21), in the June 25, 2013 adoption order and rules, effective January 1, 2014. The comment addresses improper curtailment, the client’s interests, and adequate explanation of foreseeable additional services. Scope [1] identifies comments as interpretive guidance. (archival copy — historical rules) The September 25, 2018 amendment order, effective January 1, 2019, added specific written flat-fee disclosures. Those later requirements are not applied to the 2017 agreement. (archival copy — amendment order) ↩︎
State v. Tetu, No. SCWC-13-0003062 (Haw. Dec. 5, 2016), section III.A.2(a), opinion. The court addressed reasonable defense investigation and access to the crime scene. Its discussion of investigative tools does not decide the adequacy of counsel’s preparation in this case. ↩︎
Hawaiʻi Rules of Professional Conduct, Rules 1.1 and 1.3, competence and diligence. The official rules PDF requires reasonably necessary legal knowledge, skill, thoroughness, and preparation under Rule 1.1, and reasonable diligence and promptness under Rule 1.3. The relevant pages in the archived compilation are HRPC–7 (release December 2013, PDF p. 13) and HRPC–10 (release December 2015, PDF p. 16). These duties supply professional standards for the conduct examined here. ↩︎
Briones v. State, 74 Haw. 442, 462–64, 848 P.2d 966, 976–77 (1993), opinion. Specific omissions, potentially meritorious defenses, possible effect, and tactical choices. An obvious tactical benefit protects the particular decision; absent such a basis and with impairment of a potentially meritorious defense, the court examines counsel’s knowledge and investigation. The same framework is discussed in the Hawaiʻi Supreme Court’s 2019 Grindling opinion, pp. 22–23. (archival copy — Grindling) ↩︎
State v. Aplaca, 74 Haw. 54, 837 P.2d 1298 (1992), section II.A, opinion. The court held that failure to investigate prospective defense witnesses could not be treated as trial strategy without adequate inquiry. It concerned different facts and does not establish deficient representation here; it supplies the benchmark for examining counsel’s preparation before calling a choice tactical. ↩︎
State v. Lagat, 97 Hawaiʻi 492, 495, 40 P.3d 894, 897 (2002), section II.A, opinion. Denial of mistrial is reviewed for abuse of discretion. The case concerned a witness’s emotional outbursts, not a prosecutor’s mock-pistol argument; it supplies the standard for the court’s decision, not an answer about the relief warranted here. ↩︎
Hawaiʻi Rules of Professional Conduct, Rule 1.4, Communication. Rule 1.4 requires communication sufficient for informed client decisions. Comment 7 states that a lawyer may not withhold information to serve the lawyer’s own interest or convenience or another person’s interests. Official Hawaiʻi Judiciary rules PDF, HRPC–11–12, relevant page release December 2015 in the archived compilation. ↩︎
Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, Law & Society Review 9(1), 95–160 (1974), especially the repeat-player discussion at pp. 97–104. DOI: 10.2307/3053023. The original article supplies the framework; the 2021 republication is a reprint. (archival copy — original article) ↩︎
Hawaiʻi Rules of Professional Conduct, Rules 8.3(a), 8.3(c), and 1.6. The June 25, 2013 rules, effective January 1, 2014, contain the reporting duty and confidentiality exception applicable during the trial period. Compare the official rules text. The duty requires knowledge of a qualifying violation; whether the closing met that threshold and whether disclosure was permitted require examination of the circumstances. ↩︎
American Bar Association Criminal Justice Section, 2023 Plea Bargain Task Force Report, written by Thea Johnson. Introduction, p. 6; Principle 1, pp. 10 and 14; Principle 13, pp. 11 and 28. These passages address litigation’s accountability function and preservation of plea histories. (archival copy — complete published report) NACDL’s February 22, 2023 announcement welcomed the report’s release and identifies the ABA task force as its source. (archival copy — announcement) ↩︎
State v. Harter, 134 Hawaiʻi 308, 340 P.3d 440 (2014). The Hawaiʻi Supreme Court addressed a defense lawyer’s personal-interest conflict and quoted Rule 1.7’s focus on interference with independent professional judgment and courses of action that reasonably should be pursued for the client. Official opinion. ↩︎
Hawaiʻi Rules of Professional Conduct, Rule 1.7(a)(2), Conflict of Interest: General Rule, addressing a significant risk that representation will be materially limited by a lawyer’s personal interest. Official Hawaiʻi Judiciary rules PDF, HRPC–19, relevant page release December 2015 in the archived compilation. ↩︎
United States v. Walter-Eze, 869 F.3d 891, 900–01 (9th Cir. 2017). The Ninth Circuit describes adverse effect through a plausible alternative defense strategy that went unpursued because of counsel’s competing loyalties or interests and asks what counsel found himself compelled to refrain from doing. Official opinion. ↩︎
United States v. Hearst, 638 F.2d 1190 (9th Cir. 1981). The Ninth Circuit ordered further examination of an alleged personal financial conflict even though counsel and the government supplied plausible tactical explanations for the challenged decisions. Opinion. ↩︎
People v. Barboza, 29 Cal. 3d 375 (1981). The California Supreme Court held that a public-defense contract created a real conflict where identifying conflicts caused financial loss to the defender. Opinion. ↩︎
Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993). The Second Circuit found an actual conflict where a criminal defense contingency arrangement supplied counsel a monetary incentive against plea or lesser-offense strategies. Opinion. ↩︎