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Sunday, September 12, 2004



Neighbors’ feud
grows over cat litter

Criminal cases raise questions
about use of taxpayer resources


Prosecutors taking a Waikiki condo owner to court over an allegation that he attempted to steal a neighbor's newspaper are now going after him on an additional charge -- criminal littering.

Authorities have charged the owner and his roommate for allegedly dumping used cat litter outside the front door of their next-door neighbors' home in March. The next-door neighbors are the same ones who in 2002 accused Ronald D. Silverman of trying to steal their Sunday newspaper. The newspaper case is set for trial this month.

The feuding neighbors own adjacent units on the 38th floor of Discovery Bay condominium, an upscale high-rise on Ala Moana.

The pursuit of criminal cases by the Prosecutor's Office is raising questions about the use of limited taxpayer resources on what some say are seemingly minor disputes between neighbors.

"These are not the kind of cases we should be wasting our precious resources on," said criminal defense attorney Earle Partington, a former Honolulu prosecutor who is not involved with either case. "They have no business being in the criminal courts. A prosecutor has to exercise discretion, or the office will be overwhelmed."

Others, however, give Hono-lulu prosecutors the benefit of the doubt, saying intervention may have been necessary to prevent the Discovery Bay feud from turning violent. Silverman's next-door neighbors, Barry and Barbara Feather, previously have said in court documents that they feared for their lives.

"As long as (prosecutors) are only using the law to try to keep peace, I don't think they're subject to criticism," said Laurence Benner, a law professor at California Western School of Law in San Diego.

If the Prosecutor's Office believes it can prove that a crime was committed, based on the evidence, prosecution is pursued, officials said.

That's what happened in both Discovery Bay cases, according to Renee Sonobe Hong, deputy prosecutor for the city.

Despite such arguments, critics are questioning the public resources being devoted to prosecute Silverman and his roommate, Randall Podals, for what are petty misdemeanors.

Multiple court hearings already have been held in both cases, and the nonjury trials haven't even started.

Attorney Gary Dubin, who represents the roommates, said he's made at least four or five court appearances in each case, and at several of those hearings police officers and other prospective witnesses also showed up.

Silverman, a real estate broker, is scheduled to go on trial Sept. 21 in District Court on the fourth-degree attempted-theft charge.

Silverman and Podals are expected to have separate trials on the criminal littering charge. No trial dates have been set.

The defendants have denied the charges.

"This is a waste of system resources," Dubin said. "It's idiotic."

Dubin said the state has a condo governance law that is supposed to steer minor disputes between neighbors to out-of-court mediation and arbitration, precisely so the judicial system doesn't get clogged with such cases.

"How much money is the city and county going to spend to solve these kind of disputes between neighbors?" Dubin asked. "There's thousands of these."

Partington and others said the Prosecutor's Office should have exercised its discretion and declined to prosecute, recognizing the civil courts or private mediation would be the more appropriate venue for resolving the Discovery Bay disputes.

"The (prosecutors) over there may have more resources, but I can't imagine the DA here filing something like that," said Southern California attorney Stan Feldsott, referring to the district attorneys who prosecute nonfederal crimes in his state.

Feldsott is an expert in condominium law and has advised condo associations on whether to get involved in neighbor disputes.

Sonobe Hong, the Honolulu deputy prosecutor, suggested her office had little choice but to prosecute once the Discovery Bay cases were investigated by police and turned over to prosecutors.

"If we believe we can prove a crime beyond a reasonable doubt, we're almost duty-bound to prosecute," she said.

In the littering case, Silverman and Podals are accused of dropping used cat litter in the enclosed hallway outside the front door of the Feathers. The roommates have to walk past the Feathers' condo each time they take trash to the 38th-floor garbage area.

Noting the alleged littering was caught on surveillance cameras, the Feathers told police several weeks after the March incidents that Silverman and his roommate had violated a court restraining order prohibiting them from harassing the Feathers.

Silverman and Podals denied the accusations, and Dubin said the surveillance tapes show no littering. The Star-Bulletin viewed the tapes provided by Dubin and found them to be inconclusive. Logs kept by security guards, however, indicated the presence of cat litter in front of the Feathers' door around the time of the alleged offenses.

The two roommates were arrested on suspicion of violating a restraining order, but the charge later was reduced to criminal littering. If convicted, a first-time litterer faces a sentence of four hours picking up trash on public property or other community service and a fine of up to $500.

In reports filed with police, Barry Feather noted that he and his wife on numerous occasions have found cat litter, wrappers and other trash outside their door. The security cameras were installed for their protection, he wrote in the reports.

Barbara Feather told the Star-Bulletin that the couple would have no comment, citing the pending litigation.

Dubin said a compound used in Discovery Bay's parking garage to soak up oil looks almost identical to cat litter, suggesting that the compound unknowingly could been carried on someone's shoes onto the 38th floor. The alleged litter found outside the Feather's door was swept up and thrown away, Dubin said.

Attorney Denise Hevicon, who represents the Feathers, said, "There is more to these cases than meets the eye." She declined to elaborate other than to say she has talked to federal authorities about incidents involving Discovery Bay residents.

If neighbors in a condo complex have disputes involving violations of condo rules, the association can get involved and, if no resolution is reached, file a lawsuit in civil court, condo attorneys say.

Feldsott, the condo law expert, said he typically advises associations not to get involved if the disputes affect only a few residents.

A Discovery Bay representative declined comment, citing the pending litigation.

Another option: a condo owner who believes his or her property rights are being violated, such as through nuisance behavior of a neighbor, can file a lawsuit, seeking a stop to the behavior and damages.

Some condo attorneys believe pursuing criminal charges can bring quicker resolutions, but that means taxpayers pick up the tab.

"The complaining homeowner gets a free ride through the DA's office," Feldsott said.

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