LIHUE >> The U.S. Supreme Court has refused to review an appellate court decision that Kauai Prosecutor Michael Soong cannot be sued for his conduct even though he violated the constitutional rights of a criminal defendant. High court denies review
of Kauai lawyer’s conduct
By Anthony Sommer
tsommer@starbulletin.comIn 1999 the 9th U.S. Circuit Court of Appeals ruled that Lloyd Dela Cruz could not sue Soong because there were no prior court decisions to warn Soong that he was opening himself up to a lawsuit. The Supreme Court let that ruling stand on Monday.
Soong had no comment, saying he was not aware of the high court's decision.
The appellate court decision was highly critical of Soong's actions even while ruling that he could not be sued.
It said the issue of a prosecutor acting as his own witness and presenting accusations to the court that never were investigated had never been decided by a court before. As a result, the court said, Soong could not have known that he could be sued and was entitled to "qualified immunity."
According to the court account, Dela Cruz was indicted in January 1997 on two felony drug charges. He was arrested and released after posting bail.
On April 1, 1997, Soong filed a motion with Kauai Circuit Judge George Masuoka asking that Dela Cruz's bail be revoked.
In support of his motion, Soong submitted an affidavit he wrote in which he said Gina Perreira, Dela Cruz's ex-wife and a witness against him in the drug case, had told Soong that Dela Cruz had assaulted and threatened her while he was out on bail.
According to the court records, Dela Cruz and Perreira were involved in a child custody dispute at the time, and Soong was aware of it; Soong later admitted that he did not investigate Perreira's accusations.
In a private meeting between Soong and Masuoka, the judge revoked Dela Cruz's bail and ordered him jailed. There was no hearing, neither Dela Cruz nor his attorney were present and Perreira was not called to testify and face cross-examination.
"Soong submitted his affidavit in reckless disregard of its falsity," the appellate court found. "Soong knew that Perreira was potentially biased and had reasons to fabricate, but he conducted no investigation into the truth or falsity of her allegations.
"We conclude that Dela Cruz has presented a case, sufficient to survive summary judgment, that his Fourth Amendment rights (against unreasonable search and seizure) were violated."
But the appellate court held Dela Cruz could not sue Soong for violating his rights because Soong had no way of knowing he was making himself liable to a lawsuit.
Dela Cruz's attorney, Harold Ross of Honolulu, said he was disappointed the Supreme Court chose not to review the issue of whether misconduct by a prosecutor opens the prosecutor to a possible civil lawsuit.
County of Kauai
