Retired cop appeals
for legal fees

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By Debra Barayuga
dbarayuga@starbulletin.com

An assistant police chief who pleaded no contest to a charge of second-degree theft involving food purchases earmarked for detainees is still hopeful the city will pay for his legal fees.

Rafael Fajardo Jr., 61, argued in Circuit Court yesterday that the Honolulu Police Commission voted erroneously to deny him legal representation. He is asking the court to reverse the commission's decision.

The commission had voted on July 31 not to use taxpayer money to pay for Fajardo's legal fees after concluding he did not meet his burden of proving that the actions he was being prosecuted for were done in the performance of his duties as a police officer.

Circuit Judge Eden Elizabeth Hifo said she will rule at a later date.

Fajardo and Maj. Jeffrey Owens, who were in command of the Central Receiving Division during overlapping periods from 1995 to 2000, were indicted in August 2001 for allegedly ordering various food items for prisoner meals but feeding officers and higher-ups instead.

The commission's ruling to deny Fajardo legal counsel was a major factor in his decision to plead no contest to second-degree theft last month, said his attorney, Howard Luke.

Fajardo, who has since retired, was potentially facing a four-month-long criminal trial and "tens of thousands of dollars" in attorney's fees, he said.

Fajardo, in court documents, argued the criminal charge against him related to his actions as commanding officer of the Central Receiving Division and that he is entitled to legal representation. He also argued the commission failed to follow its own rules and denied him his right to a fair hearing by not having all seven commissioners present to vote on his request.

Luke said that of the four members of the seven-member commission present at the contested-case hearing, two voted for and two voted against granting Fajardo legal fees. Two votes against Fajardo's request did not constitute a majority and therefore meant they had not officially denied his request, Luke said.

But Duane Pang, attorney for the Police Commission, said there was a sufficient number of commissioners at the contested-case hearing to constitute a quorum. The two members present at the meeting who agreed Fajardo should be provided legal counsel joined the other two commissioners in later approving the findings denying Fajardo's request -- constituting a majority of the commission, Pang argued.

But Luke said there was nothing to show why two in favor of Fajardo had later voted against him. Luke also argued that more commissioners should have voted in the case.