LOPES, AINA, WINGO, and AKAGI: EXPERIENCING POLICE MISCONDUCT Part Three DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION STATE OF HAWAI'I December 30, 1996 DC CR.NO. 96-9957 REPORT #96-372203 Preliminary Thoughts and Subjects  I had been charged by H.P.D. officers with harassment, specifically, with "pushing an officer." I pled "not guilty," and a court date was set for the end of October, 1996, roughly one month after the alleged offense. I was directed to the Public Defender's office, as at the time I could not afford an attorney.  It was surprising to me, to see how crowded the Public Defender's office was. Low income people in Hawai'i seem to be charged with crimes quite often. Wendy and I had to wait for our interview, even though I had an appointment, and I wondered if there was a spot where I was supposed to take a number and be seated. The only time I had seen them (public defenders) "in action" was in traffic court, representing people whose plea tended to be something like, "Well, I could see that the light had turned red, but I was going too fast to stop."  My regard for and expectation of services from this office was not very high. The attorney assigned to my case was Ms. Debbie Tulang. She turned out to be quite competent, and changed my opinion of the Public Defender's office to a very positive one. The officers couldn't attend the October trial, so it was rescheduled for November. They were not all able to attend at that time, either, so it was rescheduled again for December 30. Meanwhile, Wendy had a serious problem put on her. I don't want to compromise her privacy, or go into her history, so to be brief, about fifteen years earlier, she had testified in a case that sent several people to prison. They threatened to retaliate against her when they got out. She took the threat seriously, and for years carried a tremendous fear of retaliation. She was constantly looking over her shoulder, and watching cars to see if she was being followed. A day or so after we had filed our complaint at the Police Commission (reporting that officers had beaten me), Wendy's youngest daughter - about twelve years old - came home and fearfully reported that she had been followed home from school by somebody in a yellow truck. Wendy was instantly protective, very afraid for her daughter, and sure that this was retaliation by the officers we had complained against. Police and the daughter's school were informed of the incident. As days continued, the daughter was again followed, almost on a daily basis. She said that men in the truck yelled at her that they were going to take her away, and rape and stab her. Surveillance was set up by H.P.D. and the daughter was followed home by them. She continued to arrive home in a panic, saying that her stalkers were getting closer. Wendy was getting frantic, and started to watch her daughter's walk from school herself - with me, if I didn't have to work.  More than once the point was made to Wendy that she could pick the daughter up at school, as she (Wendy) had a car, and that this would ensure the daughter's safety. One problem with this was that the daughter was a very willful young woman, defiant and determined to outmaneuver the yellow truck, the H.P.D. surveillance, and her mother. Wendy did manage to pick her up sometimes, but that was rare. Another problem was that Wendy was sure that the men in the yellow truck were officers, and that the surveillance team wouldn't bust fellow officers even if they were caught. She was determined to catch them herself.  I found myself in quite the odd spot. I was 100% angry at the officers who had beaten me - and I didn't know who they were - but here I was, co-operating with H.P.D. officers (who dressed just like the ones who had assaulted me) in trying to catch this alleged stalker. Worse, after the first few instances, I started to suspect that there was no yellow truck, no stalker, and that the daughter was just engaged in getting attention, with the added bonus of tormenting her mother. Wendy fully believed that it was her maternal duty to accept what her daughter was saying - that if she questioned the girl's story it would be the equivalent of calling her a liar. The stalker was never caught. H.P.D. ended their surveillance after several weeks of coming up empty handed. Wendy was an emotional wreck, bitter and angry at all police for assaulting me and failing to protect her daughter. She was now deathly afraid of retaliation against her family if she testified in court for me, yet wanted to speak the truth and bring the guilty to justice.  Ms. Tulang, my public defender, told me that if Wendy did get on the witness stand, the prosecution would rip her to shreds. Besides probably damaging my case, she would suffer severe emotional stress. Ms. Tulang had spoken with security guard Lauer, my other witness, and she felt that his testimony along with mine would be sufficient to win the case. In no sense do I mean to imply that the officers who assaulted me and accused me of harassment had enough on the ball mentally to have obtained the schedule of the family of my primary witness, and started to intimidate her within three days of committing their crimes. I suspect that Wendy's daughter was clueless about my situation, and was "merely" engaged in getting attention and tormenting her mother. Far stranger situations have transpired between many mothers and their twelve year old daughters. In any event, we decided not to call Wendy as a witness. As the trial date neared, I found myself speculating about how the officers were going to blend in their lie about me pushing an officer with the reality of what took place. I recalled several sections, or scenes, of the incident, and none of them had me remotely near pushing anybody.  Officers approached Wendy and me, and pulled us apart. An officer awkwardly asked me if I could produce any form of identification, and I foolishly imitated him as I got my wallet out of my pocket. Several officers were yelling at me, Aina in particular being very agitated, clutching his uniform, showing me his name. There was a confused period, in which putting my wallet back into my pocket, being manhandled to a short wall and sat down, and having my face in Aina's chest all took place at the same time. Officers taunted me while I sat on the wall, and eventually started punching my head until I woke up behind the wall. The only time in this sequence that I could have possibly contacted one of them was when I was bullied to the wall - had I been pushed into one of the officers by another one? Even if that was the case, I would have been off balance, and hardly a threat. Were the officers going to acknowledge their yelling at me, and the taunting, the punches to the head? Where in this sequence were they going to say that I pushed one of them, and how?  Had it somehow become an offence to ask a police officer for identification?  How had security guard Lauer seen the situation? Ms. Tulang said that he would be a good witness for me, but also suggested that I avoid talking to him, as that might look like we were conspiring.  What would happen to the officers if we managed to prove that they had beaten me unconscious for no reason at all, and then falsely accused me to provide an excuse? Would this lead to any charges against them, or any kind of discipline? Ms. Tulang informed me that this trial was only about me being guilty or innocent of pushing one of them. I was the only one on trial.  "Don't be surprised," she told me. "Cops have been known to lie." December 30, 1996 The trial started with my case - 7P - being announced by the prosecutor. Ms. Tulang asked for one moment to dismiss her witnesses in a prior case, so there was a very short recess. The actual process began with me being arraigned, which I thought had happened in early October. The prosecutor stated "Mr. Arney, on or about September 26, 1996 ... with intent to harass, annoy, or alarm another person, you did strike, shove, kick, or otherwise touch another person in an offensive manner or subject another person to offensive physical contact.  ...  How do you plead?"  I replied, as I had in October, "Not guilty," and we were underway.  The first witness called was Ronald Lopes. The prosecutor - Ms. Lum-Akana - verbally walked him through an introduction. Responding to her questions, Lopes related that he was a Honolulu police officer, that he was on duty early in the morning of September 26, that he was involved in arresting me, and that he could recognize me there in the courtroom. The arrest had been for harassment, on Nimitz Highway just ewa of River Street. "We were sent on a domestic between a male and a female."  "Where were you sent to?"  "Nimitz and River Street." … "When we first arrived, I saw the defendant with this female, and they appeared to be arguing, and the female was hanging on to his right arm."  Prior to this, had he known or had any contact with the defendant or the female?  "No." Was anybody else in the area? "Just the homeless that sleep in the park. They were maybe a hundred to a hundred fifty feet away." What were the lighting conditions like?  "The overhead street lights, that's about it."  Could he see the faces of the people a hundred feet away? "...the homeless people sleeping? ...No." "I was with officer Akagi. ... He was my trainee. ... we had pulled over and separated the two parties to find out what was going on."  "I began; we first separated them to find out what was going on. He was very upset. I could smell a lot of alcohol from both parties, and I asked him to step to the side. He was still upset, he was yelling at me and the female." "What was he yelling at you?" "What we were doing there. They didn't need us. We were just finding out what was going on."  “What happened next?" "I asked Mr. Arney here for his identification, and he just looked at me and said my I.D., what about yours. ... He said, he told me, he said you want my I.D., where is your I.D., and he pushed me in the chest." Ms. Lum-Akana: "May the record reflect that this witness has indicated with his hand, open palm ..."  "He pushed me with his left hand." "Push forward towards, what?"  "In the chest area."  "Did he make contact with your body?"  "Yes, he did."   ..... "What was your posture just prior to him pushing you?" "I was in a standing position."  "Okay. Where were your hands?"  "To my side." "What happened after he pushed you?" "I stepped back a couple of steps 'cause I lost my balance, and I pushed him to sit on the wall.       "Then what happened?" "That's when officer Wingo came over."  "Okay. Did everything you testified to occur here on this island of Oahu?" "Yes, ma'am." "Thank you. No further questions." Well, I didn't have to wonder anymore about how they were going to blend their lie in with reality. Lopes had the time, location, and participants right, then misquoted my statement and blew it into a series of lies. He left what had really happened totally out of his account. Lopes couldn't look me in the eye as he spoke, in fact, he couldn't look at anybody. I had made a point of doing so with everyone in the courtroom as the proceedings got underway - not as a staring contest, but as a way of affirming that we were all there, treating each other with integrity. The judge, the prosecutor, the court reporter, and the bailiff, all had no problem with eye contact; a brief meeting of the eyes, but Ronald Lopes gave his testimony while looking at the ceiling. The sound of his voice, though, brought back sordid memories. Every silky, smooth lie that Lopes uttered reminded me vividly of the events of that night, especially the sequence and the participants. I remembered police vehicles emerging from the short road that runs from Nimitz to King Street past the Aala Parking lot. It was Lopes, not Aina, who had so awkwardly and agitatedly asked me, "Can you - produce - any form - of i-den-ti-fi-ca-tion?" I remembered now that all of the officers were agitated from the very beginning. And it was Lopes who badgered me with questions while I sat on the wall, keeping my attention on him, so my head was in position to be punched by another cowardly officer. Lopes' voice was the one I had heard while I was lying handcuffed on the ground, instructing the others, "We'll charge him with harassment, in case he makes a complaint." Ms. Tulang had asked me to write comments on a notepad, if anything the officers said could be questioned. I was so dumfounded by Lopes' blatant fiction that all I could write was "lies."  Ms. Tulang started her cross examination. In response to her questions Lopes affirmed that he initially arrived at the scene in response to a domestic call, that I was separated from another female, and that they did not further investigate the problem between me and the female.  Lopes: "We couldn't, they weren't telling us anything."  "So at that point, you directed your focus on Mr. Arney, is that correct?" "After he pushed me, yes." "Well, before that, you testified that you had asked him for some I.D., is that correct?" "Correct."  "So, your attention was already focused on Mr. Arney at that point?"  "Correct."  ..... "You identified my client today in court, that's correct, isn't it?"  "Yes." "So, there was enough lighting near you that you could see my client?" "Yes." "In fact, there is a street light -- where was the lighting in relation to yourself and Mr. Arney?" "That would be like across the street, overhead street light ... about 40 feet." "But there was enough light to be seen?" "Yes, they were close enough."  "So that if other people in the area were present, they could see you and Mr. Arney standing in that light, correct?" "I would say, yes."  "There was enough lighting in that vicinity. When you testified that you were having a verbal conversation with Mr. Arney, were there other officers present at that time?"  "Yes, ma'am. Officer Akagi, officer Aina, and officer Wingo arrived."  .....  Ms. Tulang: "Okay. ... you stated that my client was uncooperative, correct?"  "Yes, ma'am."  "But at that time that you arrived, he was arguing, as you said, they appeared to be arguing, my client and the female present, correct?"  "Correct." "And you immediately spoke with him right after that, after this argument he was having?"  "Yeah, we separated the parties."  "Okay. So, you would agree that he's still upset about probably what he was arguing about, correct?" "I would say, yes." "Okay. Officer, you stated that my client had asked you for some I.D., correct?"  "Correct."  "And this occurred right after your asking him for his identification?" "Right."  "And you have the authority being a police officer to ask someone for their identification if you're investigating, correct?"   "Correct." "Okay. So you're a little perturbed, aren't you, that this civilian witness is, or this civilian person is asking you for identification, correct?" "No."       "You were not at all bothered by that?" "No." "You're investigating the scene and you ask my client for identification, correct?"  "Correct."  "And he turns around and asks you for identification? That didn't bother you at all?"  "No." "Immediately -- you testified that after my client asks you for I.D., he just pushed you?" "Correct." "Okay. For no reason at all, he asked you for I.D., and pushed you, that's what you're telling us today?" "Pretty much, yes." "And how tall are you, officer?" "Six-two."  "Okay. And how much do you weigh?"  "Two-thirty."  "And you would agree with me that my client is significantly shorter than you are, correct, you remember him that day?"  "Yes."  "Okay. And lighter in weight, correct?" "Yes." “Now, you say that when Mr. Arney pushed you, he pushed you where you lost your balance, correct?" "Correct."  "You had to take a few steps back, even?"  "Couple of steps back."  "Okay. But right previous to Mr. Arney pushing you, you said with one open left hand palm? "Yes."  "And right before he did that contact with your body, was he just standing in front of you?" "Yes, ma'am." "Okay. He didn't take any steps backward before he pushed you?" "He had his hands to the side. He was visibly upset."  "And you guys weren't very far apart, were you?"  "No."  "So, previous to this, he's just standing in front of you?"  "Right."  "Just a few more questions. Officer Lopes. There is a tile wall, correct, near where you and Mr. Arney were standing?"  "Yes, there is."  "Okay. And that wall would have been at that point in time behind Mr. Arney, is that correct?"  "Right."  "Okay. And isn't it true at that point that you pushed Mr. Arney into the wall?"  "I pushed him back to create space between him and me." "When was that?" "Right after he pushed me."  "Right after he pushed you. So, are you saying he pushed you, you took a few steps back?"  "I reacted to it."  "Okay, you took a few steps back?"  "Yes."  "And then you pushed him in reaction?"  "Well, on the way back just to create space 'cause I felt myself going back."     (underlining 2003 a.a.)  "Okay. So, you're telling us that you were pushed, you were contacted in the chest area, is that correct?"  "Correct."  "Okay. You're taking a few steps back off balance, right, you weren't ready for that push, is that correct?"  "I wasn't, right."  "But at the same time, you pushed Mr. Arney back?" "Yeah, instinct, my hands came up."       "So you did have contact with Mr. Arney?" "Yes." "Okay. And you had contact with his chest area?"  "I believe it was his chest area 'cause I just pushed back just to, like I said, to create the space between me and him."   "Okay. And at that point, Mr. Arney fell on to the tile wall, correct, he fell over the wall?"  "He sat down on the tile wall?"  "I'm sorry?"  "He sat down on the tile wall."  "He just sat on the wall. Isn't it true that he actually fell over the wall?"  "No, he sat right on the wall." "Officer Lopes, you also had further bodily contact with Mr. Arney, isn't that correct?"        "I'm sorry?"  "You had further contact with Mr. Arney after that one push, correct?" "When we handcuffed him, that was it."  "I have no further questions, your Honor."  I will take issue with Lopes' testimony a little later. At this point I just want to note several of his contentions:  Lopes alleged that he (they) were sent to Nimitz and River on a domestic call.  Lopes alleged that he and officer Akagi separated Wendy and me, and "could smell a lot of alcohol from both parties," even though we were separated.  Lopes alleged that I was yelling at him and Wendy at the same time, prior to him asking me for identification.  Lopes stated that there was enough light from nearby street lights so that if people were in the area they would be able to see us. Lopes stated that there were people one hundred to one hundred fifty feet away.  Lopes agreed (with Ms. Tulang) that other officers were present while he and I were having a verbal conversation.  Lopes alleged that he and I both had our hands to our sides, and immediately upon being asked to present some identification, I asked Lopes for his I.D., and pushed him in the chest "area". Even though he was totally unprepared for this push, and was forced to take two steps backwards, Lopes' hand immediately came up and managed to push me back - "to create space," - strongly enough to force me backwards onto the tile wall behind me. Note that Lopes initially said, "I stepped back a couple of steps 'cause I lost my balance, and I pushed him to sit on the wall," which evolved under cross-examination to "...on the way back ... at the same time ...yeah, instinct, my hands came up ...I just pushed back, just to, like I said, to create the space between me and him ... He sat down on the wall."  Lopes alleged that the only other contact he had with me was when I was handcuffed. The next officer called was Dru Akagi. He too was walked through his introduction as a Honolulu police officer, stated that he was on duty the night of the incident, and recognized me there in the courtroom. He was with officer Lopes that evening. Interestingly, he did not say how they came to be at Nimitz and River when Wendy and I were going past, but it was the prosecutor who led into the subject. Ms. Lum-Akana: "And you responded to the scene at Nimitz and River, is that right?"  "Yes."  "Tell us what you saw when you first got there?"  "What I first saw was a female and male arguing, yelling. They were headed, walking on Nimitz toward town. She was hanging on to him, so when we got there, we stopped to find out what was going on. ..... "...how close were you to them?"  "When we first stopped them, a matter of about maybe ten, fifteen feet."  "Okay. And did you later on approach them?"  "Yes, I did." .....  "Would you describe his condition to us, please?" "The main condition I observed is when I approached when I first split them up, I could detect a strong odor of alcohol- type beverage from both of their breaths." ..... "Where was officer Lopes and the defendant in relationship to where you were?"  "We were separated by about, oh, eight feet when we separated them."  "What if anything did you see happening with officer Lopes and the defendant?"          "Well, my back was towards them, but when I heard the defendant raise his tone of voice to officer Lopes is when I turned around. Then I heard him say something to where's your I.D." "Did you hear him say where's your I.D.?" "Yes. That's when I turned around." "What tone of voice did he say it, the way you just said in court today?"  "It was like a raised higher tone."  "Would you describe, would it be a whisper, a yell, a scream?" "No, it was more a yell."   "And you heard this and you did what?"  "I turned around to see what was going on. Then I seen him push officer Lopes and at that point, I turned back my focus to the female to make sure she wasn't going to jump, you know, attack or start confrontation also."  "Okay. Were you able to see, were you able to see contact between the defendant and officer Lopes?"  "Yes."  "Okay. And at the time that the defendant -- well, what part of his body contacted officer Lopes?"  "It was a, I'm not exactly sure what hand, if it was his left hand, but he pushed him in his right shoulder."  "Right before, as he pushed officer Lopes, what was officer Lopes' stance?" "They were standing kine'a close to each other."  "Do you know whether his arms, officer Lopes' arms were raised or down?" "When he was asking? At what point?"  "At the point where you saw the defendant?"  "It was down."  "Okay. Is that what you remember?"  "Yes."  "Thank you. No further questions."  Ms. Tulang started her cross examination:  "Good afternoon, officer Akagi. So, in this situation when you arrived, you were actually taking care of the female that was present, is that correct?"  "Yes."  "After you had separated Mr. Arney and the female?"  "Myself and officer Lopes arrived at the same time. We were in the same vehicle. We separated the female and the male." "You testified that your back was to officer Lopes and Mr. Arney, correct?"  "Yes."  "And you didn't turn around until you heard a difference in tone, as you say?"  "Yes." "And it was at that immediate moment that you saw Mr. Arney contact with officer Lopes' body?"  "So, you didn't actually see what occurred right before you turned around short of what you heard, correct?"  "No." "So, you can't really say where officer Lopes' hands were or his stance?"  "No, only when the initial contact." "So, you can't even say that whether you saw officer Lopes contact my client first, correct?"  "Correct."  "Because all you did was turn around when you heard the difference in tone?"  "Yes." "And you're saying that the change in tone from what you say is my client's voice, correct?" "Um, umm."  "But you didn't know Mr. Arney before this incident, correct?"  "No."  "So, you're not even aware that he's actually partially deaf in one ear, correct, or that sometimes he speaks in a loud or rough tone of voice?"  "No." "No further questions, your Honor." As with Ronald Lopes, I will take issue with Dru Akagi's testimony a little later. Some of the points he made are: He and officer Lopes "responded" to a scene at Nimitz and River. A male and a female were arguing - "yelling" - at each other. They (we) were walking towards town.  Akagi and the female were separated by about eight feet from Lopes and the defendant, yet Akagi could "detect a strong odor of alcohol type beverage from both of their breaths."  When (Akagi) heard the defendant raise his tone of voice (from a yell to a yell) is when he turned around. "Then I heard him say something to where's your I.D. ..."    Akagi didn't turn around until he heard a difference in tone. At the immediate moment that he turned around, Akagi "saw" me push Lopes in the right shoulder.    Akagi initially said that Lopes' arms were down when he (Akagi) saw the alleged push. Under cross examination he admitted that he did not see Lopes' stance or arm position.   Akagi agreed again that he did not turn around until he heard a change in my tone of voice. The next officer called was David Wingo. Ms.Tulang challenged his appearance, "just to determine whether it would be cumulative." Ms. Lum-Akana offered that whereas Akagi did not see what was occurring between Lopes and me until he (Akagi) turned around, Wingo had a different perspective and different view of the scene. Over objection, Wingo was brought in.  Wingo, too, was an officer with H.P.D., was on duty September 26, and "responded" ("Yes, I did," he answered to Ms. Lum-Akana's question) to a scene involving Alfred Arney. He identified me as the gentleman sitting at the (defendant's) table. Ms. Lum-Akana: "...did you respond to a scene at River and Nimitz ...?"  "Yes, I did."  "What did you see?"  "At the time I arrived, officer Lopes was standing in front of the defendant, and I saw the defendant push officer Lopes."  "About how far away were you from them when you saw it?"  "I was about five feet."  "What was officer Lopes' posture at that time?" "He was standing right in front of him." "Were you able to hear any of the conversation?"  "Very little as I approached."    "Could you describe officer Lopes' tone of voice just prior to the shove?" "It was calm."  "Okay. Could you describe the defendant's tone of voice prior to the shove?" "It was very loud and boisterous."  "Were you able to observe the defendant's physical demeanor and appearance?" "Yes. ... He appeared really agitated, appeared drunk to me." "Were you able to smell any odor?"  "Yes, I did smell some alcohol." "Coming from?" "From his breath."          .....  "Did you see any other witnesses nearby in that area?"  "There was the other party -- the original call, there was an argument between two people and there was another female that was there at the time."  "Did anybody come up to you or anybody else, any other officer at that time?" "No."         "And did you and the other officers Lopes, Aina, and Akagi, talk about this case prior to testifying today?"  "No." "Did anybody tell you what to say?"  "No."  "Thank you. No further questions." The cross examination:  Ms. Tulang: "Good afternoon, officer Wingo. Just a few questions. So, you arrived at the scene after officer Akagi and officer Lopes, correct?" "Yes, ma'am."  "You didn't see any actions between Mr. Arney and officer Lopes before you arrived, correct?"  "No. ma'am, I did not."  "You testified that when you arrived, you saw officer Lopes and Mr. Arney standing in front of each other?"  "Yes, ma'am." "How far would you say they were apart?" "About two feet." "And you testified that officer Lopes was calm, correct?" "He appeared to be."  "Speaking in a calm voice?"  "Calm manner, yes."  "Okay. And what posture did officer Lopes have at the time that you arrived?" "Seemed to me in a professional manner, he was just asking questions. I couldn't tell what he was saying, though."  "Okay. And so, you're telling us today at that point after seeing him standing there together, all of a sudden my client just pushed officer Lopes for no reason at all?" "I don't know what he did, that's just what I saw."  "So, you're saying that you did not see officer Lopes have any contact with my client?"  "No, I didn't" "Officer Wingo, isn't it true that officer Lopes actually pushed my client on to the tile wall?"  "I didn't see him push anybody."  "Are you saying that at anytime, you did not see officer Lopes push Mr. Arney onto the tile wall?" "Actually after the defendant pushed officer Lopes, myself and officer Lopes placed Mr. Arney down on the wall itself."  "Okay. Yourself and officer Lopes placed my client, Mr. Arney, on the tile wall?" "Yes. Sat him down."  "Okay. No further questions, your Honor."  Points of interest from David Wingo:  Wingo, like Akagi, "responded" to a scene at Nimitz and River.  He later referred to "...the original call, there was an argument between two people ..."  Wingo states that he was about five feet away when he allegedly saw me push Lopes. Wingo could hear "...very little as I approached..." of the conversation between me and Ronald Lopes.  Lopes  was "...just asking questions ... in a professional manner ..."   Compare with Lopes:  "I asked Mr. Arney here for his identification, and he just looked at me and said my I.D. ... where is your I.D.? and he pushed me in the chest." The defendant was "loud and boisterous." The defendant ...appeared really agitated, appeared really drunk..." From five feet away, he could "smell some alcohol ...from his breath."  Wingo did not see any other witnesses nearby, except for Wendy - the "other" female.  No other officer "came up to" him at that time.  Wingo alleged twice that Ronald Lopes did not have any contact with me, such as pushing me back to the tile wall.  Wingo alleged that he and Ronald Lopes placed me on the wall - "...sat him down..." Wingo denied that anybody told him what to say. Ms. Tulang moved for a judgment of acquittal : "Taking the evidence in the light most favorable to the state at this time, we would say that they have not proved a prima facie case, that there're many inconsistencies in the state's case up to this point, your Honor. " One being that, officer Wingo just testified that he and officer Lopes sat my client down on the tile wall where officer Lopes says he pushed ... my client, Mr. Arney, on to the tile wall, but that my client did not fall over the tile wall. But, your Honor, officer Wingo says that he was present at that time. I think that's the biggest inconsistency." "And taking the evidence that officer Akagi offered this court this afternoon, your Honor, that he did not see whether officer Lopes had any contact with my client before he witnessed Mr. Arney have any with officer Lopes."  "At any point, your Honor, we would argue that if any contact was made on that day, on the date of this incident, that it would have been in self-defense. Mr. Arney was acting in self-defense against officer Lopes, and at this point, the state would not make a prima facie case for harassment against officer Lopes."  Ms. Lum-Akana: "We would ask the court to deny defense motion for judgment of acquittal. We ask the Court to look at the evidence in the light most favorable to the state." The Court : "The standard of motions for judgment of acquittal is, of course, that the Court must look at the evidence in the light most favorable to the state at this particular point, and following that standard, and looking at the evidence which has been presented thus far, the Court will deny the motion for judgment of acquittal. ... Ms. Tulang, please proceed."  My first witness was Mr. Steve Lauer. He testified that he worked for Burns Security, at 901 River Street, which was where he patrolled. Ms. Tulang: "Okay. I'm gonna take you back to an incident that occurred on September 26th, okay? Before I do that, do you know a Mr. Alfred Arney?"  "Alfred Arney?"  "Yes?"  "Yes, he's sitting next to you."    "Okay. And how do you know Mr. Arney?"  "From the night of the incident."  “And when you say the night of the incident, are you referring to September 26th?"  "Yes, ma'am." "Okay. Did you know Mr. Arney before September 26th?" "No, ma'am."  "So, on that night, he was just a person to you?"  "Yes."  .....  "...How is it that you happened to see Mr. Arney for the first time?"  "Well, I noticed him and this young lady standing across the parking lot area, and I noticed a whole bunch of cops showed up over there, and police officers was standing there, and well, they were both standing there, and the police officer was speaking to Al, and then all of a sudden, I saw the police officer just shove Al to the ground."  "Okay. How far from this -- okay, from Al and this female that you said you saw, about how far would you say you were away?"  "At that time that the --"  "When you first saw Mr. Arney?"  "I would say about 50 yards." "Were the police officers present when you first saw Mr. Arney and the female?"  "No."  "Okay. How long did you observe Mr. Arney and the female before the police officers arrived?"  "I would probably say, probably not even five minutes."  "And then you said you noticed the police officers arrive, correct?" "Yes, ma'am." "Again, what did you observe when once the police officers arrived?"  "Again, they were standing there talking." "I'm sorry, who was standing there talking?"  "The police officers was speaking to Al."  "Could you describe what you remember the police officer looking like?" "He was tall. It's really hard to give a description from that distance." "What was the lighting like in that vicinity?"  "The lighting, it was dark, and there were street lights, but it was dark."  "But you could see the police officer and Mr. Arney?"  "The police officer and Al standing there." "So there were street lights present?"  "Yes, ma'am."  "And from where you were standing, you were getting a side view of the officer and Mr. Arney?"  "Pretty much, so it was straight ahead, I guess."  "Was there anything obstructing your view?"  "No, ma'am."  "What did you observe between Mr. Arney and this taller officer?" "Okay, I noticed the officers speaking to Al and he was just standing there. Again, I couldn't hear what was going on, and then all of a sudden, the officer just shoved Al to the ground. I could see no apparent reason why he did that because I did not see Al do anything to the officer." "Okay. Were you watching the whole time?"  "Yes, ma'am." "In the vicinity, could you describe the vicinity where they're standing, were there any other structures nearby to where to where they were standing?" "Well, they were standing, I guess, on the other side of a small wall which would have been probably, not even, three feet high."  "Okay. And how far were they standing from the wall?"  "From the wall, I would say maybe ten feet."     "Okay. So, when you observed the officer push Mr. Arney, could you describe the actual actions that you saw, describe how it is that that he pushed Mr. Arney?"  "Well, he shoved him pretty hard where it knocked him down to the ground." "Okay." "Just went like this, really shoved." "May the record reflect, your Honor, that the witness is using a forward shoving motion with both hands with open palms."  Ms. Tulang: "And where did that contact Mr. Arney?" "I would say the chest area." "Okay. And what were you doing at this time?"  "What was I doing, doing my regular rounds." "So, you were just observing?" "Yes, ma'am."  "Okay. What happened after you saw Mr. Arney being pushed?" "Shortly after that, I noticed that they had handcuffed him and put him into a police car and took him away, took him down to the police station." "Okay. Just a few more questions. When you saw the police officer, just prior to seeing the officer shove Mr. Arney, what was Mr. Arney doing?" "Prior, I'm sorry." "Before, prior to being shoved by the officer, what was Mr. Arney doing?" "The officer, again, was just speaking to Al, and he was just standing there, you know, with his hands in front of 'um listening to the officer. I could tell he was nodding his head. Again, I couldn't hear anything that was going on, but he was just standing there listening to whatever the officer was explaining to 'um." "And then, after Mr. Arney was arrested, did you say that, did they take him, is that what you said?" "Yes." "Were there any other persons present that you could see while Mr. Arney and the officer were standing fronting each other?"  "There were a couple of other officers there." "And what were they doing?"  "Well, I noticed one of the other officers was, the lady that was with Al, tell her just, you know, butt out, you know, this is none of your business, and the lady was trying to explain to the police officer that Al didn't do anything, to leave him alone."  "Did you hear this?" "Yes, sir. I could hear her screaming." "Okay. Did you see any contact between the other officers and Mr. Arney?" "No, I didn't." Ms. Tulang: "I have no further questions, your Honor." The cross examination:  Ms. Lum-Akana: "Your name is Steve?"  "Yes, ma'am."  "How do you know Al's name?"  "How do I know Al's name?"  "Ah, ha." "From that evening. After he got arrested, the lady that was with him had approached me cause I was still standing there, and she came to ask me if I had seen what was going on, and I told her yes, and we got to talking, and you know, I got the name from her." "Okay. When you said that you were security at 901 River Street and you were doing your rounds when you first noticed the male and the female?" "That's correct."  "What does that mean when you say you're doing your rounds?"     "We have to patrol the area in which I work."  "Does patrolling mean standing in one place?"  "It does if there's something going on that needs attention, yes."     "You said that these people were about 50 yards, which is approximately 150 feet?" "Yes, I would say." "You say that you couldn't hear what Al was saying, but you could hear what the woman was saying, is that right?"  "She was screaming."  "Okay."  "You know she was screaming, practically screaming in a crying state. Well, and she was just saying, you know, leave him alone. I can hear her screaming, leave him alone, he didn't do anything." "Did you also see her hanging on to his arm as they were walking around that area?"  "No, I didn't."  "You saw the police arrive?" "Yes, ma'am." "How many people arrived?" "Four squad cars."  "All at once?" "Pretty much right behind one another." "Okay. Were they in police uniforms?"  "Yes, ma'am." "Police cars?"  "Cushmans and police cars." "Was anyone talking to the woman while the other officer was talking to Al?" "Yes there was one police officer was speaking to the young lady."  "What did he look like?" "He looked like he was local, Japanese, dark hair." "Was this going on simultaneously, then?"  "Pretty much."  "Two officers talking to two people?"  "And how far apart were the two parties?"  "I would say 10 to 20 feet."     "Apart?" "Yes."  "Were you also looking at the female talking to the officer?" "I was glancing at both, yes." "So, you would watch periodically one and then the other?" "Yes, ma'am." "So, you weren't watching Al the entire time cause sometimes you were watching the female too, right?" "Right." "Thank you. No further questions."  Points of interest from Steve Lauer: Mr. Lauer pointed out that I was sitting at the defendant's table next to Ms. Tulang. I mention this because the officers were credited with "identifying" me, when all they had to do was look at the same table and say that I was Mr. Arney. It's not like they had to pick out my picture from among several other long haired Caucasians.  Lauer did not know me nor know of me before September 26, 1996.  Lauer stated that Wendy and I were in the area "probably not even" five minutes before the officers arrived.  Lauer saw the officers arrive almost simultaneously: "...a whole bunch of cops showed up over there … Four squad cars...pretty much right behind one another." Lauer saw me and the officers talking for a duration of time: "...they were both standing there, and the police officer was speaking to Al ... they were standing there talking ... I noticed the officers speaking to Al and he was just standing there ... he was just standing there, you know, with his hands in front of 'um listening to the officer. I could tell he was nodding his head."  Lauer viewed the incident from about 50 yards - 150 feet - away. There were street lights, but it was dark. He estimated that Wendy and I were separated to 10 or 20 feet apart, and that the officer talking to me and I were about 10 feet from the tile wall behind me. Nothing was obstructing his view.  10 to 20 feet apart, viewed from 150 feet away is quite a small angle, in fact, in the same focal field of view.                 Lauer: "All of a sudden, I saw the officer just shove him to the ground. ... I did not see Al do anything to the officer. ... he shoved him pretty hard where it knocked him down to the ground." Lauer indicated this * "... using a forward shoving motion with both hands with open palms."  *(Ms. Tulang. Lauer saw other officers present while I and the officer were "fronting" each other.  Lauer alleged : "...I noticed one of the other officers was (with) the lady that was with Al ... tell her just, you know, butt out, you know, this is none of your business, and the lady was trying to explain to the police officer that Al didn't do anything , to leave him alone. ... I could hear her screaming."  Later, under cross examination: "You know, she was screaming, practically screaming in a crying state. Well, and she was just saying, you know, leave him alone. I can hear her screaming, leave him alone, he didn't do anything."  My second witness was me. I was somewhat off balance because I had expected the officers to include more of the real incident in their allegations, and I was indignant at their outright lies. Also, as I have mentioned, the sound of Lopes' voice had brought back recollections and memories, and I was trying to process those mentally. Lauer's testimony had at least lifted my spirits - his account didn't fully match my memories, but at least it contradicted the officers.  Having been duly sworn and identified, I stated that I was currently delivering pizzas for Magoo's Pizza.  Ms. Tulang: "Mr. Arney, I'm gonna -- Al, I'm going to talk about what occurred on September 26th, okay. First of all, where were you about midnight on September 26th?" "Actually, my girlfriend and I had been shooting pool, and we had an argument. I didn't want to be driving home, I was going to walk home. And we proceeded from a parking lot on Maunakea Street along Nimitz towards home, which is Aiea." "The both of you?"  "Yeah." "And then what happened, what happened as you were walking?"  "Well, as we got across River Street to the Aala Park, several squad cars pulled up and officers stepped out and pulled us apart, and one of them asked me for an identification. What happened at that point was, I was very relieved because I was expecting that the argument would stop with my girlfriend. "So, I was glad to see the officers. Also the officer (who spoke to me) was very agitated, and if I recall, the way he expressed -- can I produce any form of identification .." "Okay, Mr. Arney, hold on." " ..which I thought was funny."  "Mr. Arney, hold on." "I'm sorry." "Okay, I'm gonna take you through this, okay. So, you don't know who called the officers?" "No." "Okay. The officers arrived, and you said that an officer asked you for identification?" "In that form, could I produce any form of identification." "Okay. And then what happened?" "And I had pretty much paired with him (the court reporter spelled this as "pared") because it sounded funny to me the way he did it. He was awkward, he was agitated, and I said, can you produce any form of identification." "Why did you say that to the officer?" "That was stupid. I thought it was funny. I thought the whole situation was nothing. It was only an argument. And the worst part of the argument .."  "Okay."  "He sounded, it struck me as humorous. I also got my wallet out at the same time ready to give him my I.D."  "And then what happened?"  "Another officer approached me from the side. They were both telling me that they did not have to show me any I.D. at all."... (indiscernible to court reporter) (The officer was clutching his chest, is what I believe I said) ..." you wanna see my I.D., it's right here." "Okay."  "At that point, things got confused. I had my face, I believe I was pushed into an officer's face, officer Aina (indiscernible) ... "   (I should have said "officer's chest") "Okay, Mr. Arney?" "... and I ended up on this wall."  "Okay, Mr. Arney --" "It all happened at the same time."  "Hold on, hold on, okay. Backing it up, taking it slowly. You said that you believed you were pushed in the officer's face, is that correct?" "I think so. All of a sudden my face was in the officer's chest." "How did that occur?" "I'm not sure. I suspect that I had a hand on the back of my neck or something, or I was pushed in several directions."  "And then?"  "And then I ended up on the wall, sitting on the wall. And about that time I thought that -- I put my wallet back because nobody proceeded to ask for it." "At any time before you felt your body being pushed on to the wall, did you have any contact with the officers?"  "When they pulled us apart. They pulled us apart. He was holding on to my arm, and that takes some pulling just to separate us, which she didn't go willingly." "But beyond separating you two, was there any --"  "No."  "Did you have any physical contact?"  "No."  "How far were you standing away from the officer?"  "Probably as far as the wall here, a foot and a half or two feet." "How tall are you, Mr. Arney?" "Five-five." "And how much do you weigh?"  "A hundred seventy, hundred eighty."  "What happened after you fell on to the wall?"  "Well, I was placed on the wall. It seemed to me I was pushed on to the wall. The officers continued to bother me about asking for the name, and I remember saying that they should not be hiding behind their badges -- then why do I need to know their names. "I said you can't be hiding behind your badges, which at that point, they left, and they went on to other things asking about why should I be doing this, and I said you're civil servants, and you should respect that, and that was it, and then I shut up. And shortly after that, I was punched several times. They punched me and they talked some more, but I refused to go along with that." "When you say they, who are you talking about?"  "I don't know. Whoever was behind, they stood back there and punched me." "When you say you don't know, you don't know their specific names?" "I couldn't see which officer did it." "Okay, but you're referring to the officers?" "The only officer's name I saw was Aina because I was pushed into his chest. Whoever was hitting me was standing where I couldn't see him."  "Okay. After you were hit -- how many times were you hit?" "Four that I recall, and then one that apparently knocked me over the wall cause I woke up unconscious on the other side of the wall." "And where were you hit?"  "On both sides of the face. I have some pictures of that. (indiscernible) (When I was at the Police Commission was ...) when the pictures were taken." "And when you woke up on the other side of the wall, what happened?" "Well, I laid there for a while. I could hear my girlfriend screaming that I hadn't done anything. I heard an officer state that they would have to arrest me in case I made a complaint. I don't know which officer said that. I was lying down with my eyes closed. I didn't want to antagonize 'um anymore. In case he makes a complaint, we'll charge him with harassment, and that's as closely as I recall what he said." "And then you were arrested?" "Then I was dragged over the wall. I was never officially arrested. They didn't read me any rights or anything. They just handcuffed me and dragged me away." Ms. Tulang: "I have no further questions, your Honor." The cross examination: Ms. Lum-Akana: "You said that somebody was punching you?" "Yes." "How many times?" "At least four. They punched me on this side first, and then tried to get me to say something."  "How did it feel?"  "It felt, actually, they were trying to get the weight of my head to see just, you know, what the resistance was."  "So, would that be sore?" "They were practicing with the punching (indiscernible) -- real target."  (Probably "with the punching bag as a human head - a real target".) "Would that have felt sore?"  "Really sore." "Any broken bones?" "No, I had some bruises." "Any blood?" "Blood was coming out of my ears. My girlfriend took me to the hospital because of that." "Did you ask them to take you to the hospital?"     "Who?" "The police." "No." "But you were in pain?" "I wouldn't admit it to them." "I see, okay." "They didn't ask if I was in pain." "What's the name of that pool hall that you were drinking at?"    "Club Hubba Hubba." "That's on, where?" "I think it's on Hotel Street. I was trying to get my girlfriend to ease up on her own stress, so we'd go out for the night." "What time did you get there?" "Probably about ten." "About ten. Where were you prior to that?"        "Oh, on the way. She takes care of her family until the evening."  "Where were you before you went to Club Hubba Hubba?"  "Well, I'm not sure once (indiscernible). She takes care of her family (indiscernible) I left her at home, then we can go out for the evening." "You're saying that you were at home?" "I don't recall that. It was my day off." "You don't know what you were doing?" "Shopping, visiting friends." "But it's kind of foggy in your memory?"  "It was my day off." "Okay. So, were you wearing a watch that evening?" "No, I never wear a watch." "Okay. Would it be fair to say that it was around midnight when the police came?"    "It was after midnight." "So, you were at Club Hubba Hubba with your girlfriend playing pool, and you had a couple of drinks?" "About one per hour." "What was your beverage?" "Budweiser beer."  "And you had been drinking prior to even when you left home, right?" "No (indiscernible)." "Okay. Did you ever know these officers before that evening?"  "Well, I don't believe so, but police officers come to Magoo's all the time, and we deliver to them, so I see every police officer in Honolulu, but I don't recall (indiscernible)." "So, that would be, no?" "Specifically no, but generically, yes."  "Okay, generically, no, then?"         "Probably. I seen these officers. I've been driving professionally since 1980. I've seen almost all the officers, directing traffic or whatever." "So, you said that your girlfriend was hanging on to your arm having an argument with you, is that correct?"  "Correct."      "And you were by Nimitz and River. And you also said that when the police arrived you were relieved?"  "Yes."  "Well, I made a joke." (indiscernible) he was agitated."     (I couldn't tell that ... he was agitated) "What was the joke?"  "I asked him for his identification." "That's what you said when they arrived?" "That's how relieved I was. I thought that was the end of the stress." "So, they arrived ---" “(indiscernible)” (I thought that) the officers had saved me." "I see. So, you were relieved when they came and then you asked them for their identification?" "Well, like I said, I paired (c.r.: pared) with what he said because it sounded so awkward and strange." "Okay. Have you ever drank a lot before and passed out?" "When I was younger. Not passed out, no, no." "No further questions, your Honor."  Points of interest from my testimony:  My main point is that one or all of the officers in this beat me unconscious, then they invented the story about me allegedly pushing Lopes to cover up the assault, thus compounding their crime. As Ms. Tulang had cautioned me, though, this trial was only about whether or not there was enough evidence to prove that I had indeed pushed Lopes. I was lucky to get their - and Lauer's - testimony on record, for comparison with other statements.  Either the officers or the prosecutor asserted that that they (officers) had been sent on a call to "a domestic at River and Nimitz." I contend that this is a lie, as Wendy and I - short legged though we are - were walking as fast as we could from Maunakea Street towards Aiea.  If somebody had actually called 911 to report a domestic argument at River and Nimitz when Wendy and I were at that location, we would have been around the corner and past the pineapple cannery by the time the officers showed up at River and Nimitz. There was no domestic call - the officers emerged from behind the Aala Parking lot, where they had been watching drug dealers (not the homeless). The officers (also per Lopes and Akagi) initiated physical contact by pulling us apart, even though we were only arguing. Ms. Lum-Akana asked if I had asked the officers to take me to the hospital. They had just beaten me and were arresting me on false charges - why in the world would I ask them for help?? Ms. Lum-Akana asked for "the name of the pool hall you were drinking at." We were shooting pool at Club Hubba Hubba and Two Jacks Bar, and had a few courtesy drinks at each place. Our primary activity was shooting pool, not drinking.  I, in particular, abhor paying bar prices for alcohol, and I avoid being drunk. Wendy previously had hepatitis B, and was an extremely light drinker, usually having Kahlua-milk. There is no way that officers smelled "a strong odor of alcohol- type beverages" from either of our breaths. I testified that I had had one or two beers at Club Hubba Hubba. This would not have given anyone a strong odor of alcohol from their breath. Unfortunately, I didn't recall that we had started our evening shooting pool at Two Jacks Bar, at about 8 p.m., where I had also had a beer or two. I mention this for the sake of my integrity to you (reader), and regret that I forgot it at trial. I was not drunk, and neither was Wendy. The officers' claims of strong odors of alcohol coming from our breaths were fabrication and character assassination like the rest of their stories. I testified that I had seen probably every officer in H.P.D. in the years I had been driving professionally - starting with driving tours in 1980 - meaning that I might have seen Lopes, Aina, Wingo, or Akagi either at Magoo's or on the street. Ms. Lum-Akana asked if I knew them before Sept. 26, and I replied "specifically, no, but generically, yes." She asked, "... generically, no, then?"   I replied "Probably," when I should have said "Generically, yes." When Ms. Lum-Akana asked if I had said that Wendy was holding on to my arm, I replied, "Correct." Actually, it was Dru Akagi who said that she was hanging on to me - I said that "He (Lopes) was holding on to my arm..." when they pulled us apart. Obviously, we all made mistakes in the heat of (court) battle. Thanks to the professionalism of Ms. Tulang and Ms. Lum-Akana, I believe that the scope and intent of every witness' testimony was made clear.  Ms. Tulang asked that the Court find me not guilty of harassment based on inconsistencies in the officers' testimony, and that in the credibility match between their testimony and Lauer's and mine, they fell far short. In particular, Lauer - an independent witness - saw Lopes shove me without provocation.  Ms. Lum-Akana pointed out that Lauer's attention was divided between an officer and Wendy and another officer and me, and perhaps he did not see the entire incident from the beginning to the end. THE COURT: “Thank you. The Court has heard the evidence presented by the State's witnesses and the witnesses for the defense, and credibility is indeed an issue in all cases. And when the Court hears the testimony of witnesses, of course, the Court has to be cognizant that everybody's trying to recall the events and the circumstances in the way they're best able to do so, and the Court has to make, of course, a decision based upon what it believes to be the facts in this case. “Based upon what I've heard here, the Court finds that the evidence does not rise to the degree one would have to find proof beyond a reasonable doubt. Accordingly, the Court will find the defendant not guilty.  Final points that I would make about this trial: Lopes contradicts himself, saying that he was having a verbal conversation with me, and also saying that my first words were to ask for his I.D., followed immediately by me pushing him. Akagi and Wingo also said that words were spoken between Lopes and me before I raised my voice "from a yell to a yell," and pushed him.  Lopes repeated that he pushed me immediately, on the way back (at least ten feet, back to the wall). Akagi and Wingo, although they were specific about me using my left hand to push Lopes, failed to see him push me at the same time. Akagi, in particular, must have spun like a top in order to allegedly see only my shove, and not Lopes' simultaneous one. They lied easily, but not well.  I'm not sure if I should be offended by Wendy being referred to as the "other" female. Wendy was the only female present. Ms. Lum-Akana's strongest criticism of Lauer was that his attention could have been divided between Wendy / Akagi, and me / Lopes. As I've pointed out, the two parties were separated by only 10 - 20 feet, which viewed from 150 feet away, is actually quite a small angle. Lauer would not have had to shift his visual focus to observe both parties.  I quote the officers’ statements for the purpose of review only, and at no point mean to imply that they were telling the truth. They got the time, place and names of this incident essentially correct; beyond that, their statements are lies. Although I am much more accepting of the trial transcript than I am of the Police Commission documents, there are still a few points of contention. Some of these caused me problems in the months to come.  This trial took place on December 30, 1996.  On page 3 of the transcript, line #1 reads: Tuesday, December 10, 1996. Several months later, when I was engaged in civil litigation in this matter, I berated my attorney for citing the Dec. 10 date. Having received the transcript recently, I can see the source of his error.  I thought that I remembered Ms. Tulang asking Ronald Lopes about the pronunciation of his last name - did it rhyme with hopes, or ropes? - and that he replied that it was Lo-pes, with a slight accent on the second syllable. The transcript doesn't  contain that exchange.   It was my observation - during the trial - that officer Dru Akagi testified that he did not see me push Ronald Lopes during the incident, because he was focused on dealing with Wendy. My recollection afterwards was 'Well, he didn't tell the truth, but at least he didn’t lie about me.'  On reading the trial transcript, I can see that Akagi did indeed join with the liars who were mentoring him.  It was also my recollection that Steve Lauer testified that the officers were yelling at me, not the other way around. The transcript shows that Lauer only said that the officer - Lopes - was talking to me, and I was nodding my head in response. After some time, Lopes pushed me - without provocation. Lauer denied seeing any contact between the other officers and me, which surprised me, as when he talked to me the night of the incident, he agreed that I had been assaulted.  One final note. At the very beginning of the trial, Ms. Tulang requested a brief moment to dismiss her witnesses in a prior case. I have no idea what kind of caseload the public defenders have to handle, but it was obvious that Ms. Tulang had more than one proceeding on that day, and she did quite well with mine. Thank you, Ms. Tulang. * * * * * Stay tuned for Parts four and five. As I mentioned in the introduction, I attempted to bring the offending officers to justice through the courts and by filing a complaint with the FBI. Even though my attempts ultimately failed, the years spent wrestling with civil court procedures revealed much about why most police misconduct goes uncorrected. Also, I managed to acquire more versions of the officers’ stories, and the reader can judge for him / herself just who was telling the truth. Please be patient.