Appeals Court rules cop
deserved city attorney

A lower court had backed the
Police Commission's decision to deny him
counsel in a beating case

By Harold Morse
Star-Bulletin

The state Intermediate Court of Appeals has struck down a Circuit Court ruling that backed a Police Commission decision not to provide legal counsel for an officer.

The Police Commission did not give adequate procedural protection to former Honolulu policeman Joseph Alejado, then under federal indictment accused of striking a prisoner after the man was handcuffed, the appeals court said.

This omission included a failure to give him the right to cross-examine witnesses in a contested case hearing before the commission, it said.

The 23-page ruling said state law entitles police officers to legal representation that cannot be denied without due process. The lower court had agreed with the Police Commission that Alejado's actions had not been in the scope of duty and that he thus was not entitled to legal representation at city expense.

The appeals court concluded, however, that Alejado "may appeal an adverse scope of duty determination, after a proper contested case hearing has been held."

It said it agrees with Alejado that due process entitles him to a contested case hearing to protect against arbitrary deprivation of his property interest and benefit.

"The Circuit Court concluded that appellant was not entitled to a contested case hearing," Tuesday's decision said. "We concluded that the Circuit Court was wrong as a matter of law. Appellant has demonstrated a legitimate claim of entitlement to city-provided legal representation, and therefore, an agency hearing is 'required by law.' Consequently, appellant is entitled to a 'contested case' hearing."

The appeals court vacated the May 14, 1997, Circuit Court final judgment that went against Alejado and remanded the matter back to circuit court with a requirement that the lower court provide Alejado the full extent of protection guaranteed by law.

The prisoner beating led to trial of Alejado and other officers in federal court.

Alejado was sentenced Aug. 10 to two years in prison. Earlier he was convicted of beating the handcuffed prisoner at Pearl City police station. Alejado's conviction was based in part on testimony of other officers.

Alejado, 28, had denied beating prisoner Sam Tupuola the night of Jan. 5, 1995, and said he saw fellow officers attack Tupuola.

Tupuola was being held at the station that night on allegations he had interfered with the arrest of another man at a Waipahu park earlier.

Tupuola, who received a $75,000 out-of-court settlement from the city as a result of the beating, testified that Alejado did not beat him and that other officers did. Three officers earlier pleaded guilty in the case.