THE WINDS 

NAMAKANI

       



                                  POLAWA
                     LOPES,  AINA,  WINGO,  AND  AKAGI:

              CRIMINALS  IN  THE  HONOLULU  POLICE  DEPARTMENT
                   A  Citizen's Report By  Alfred E. Arney
                                                       

                      Part Four : Civil Court Revelations


     Conclusion: The laws of Hawai’i and the United States were NOT skewed toward any racial discrimination (or any other bias), yet they were worthless when it came to protecting me, or preventing the Police from committing crimes.

     If you are reading this in 2021, you should know already that the United States has been in a crisis over Police shootings, and there have been calls to re-write the laws regarding Police responsibility, or even to cut out their services altogether. What I found was that the laws provided a good framework, but the people in law enforcement - from the cops on up - were united in a conspiracy to allow the Police to do whatever they pleased.

       So. Why is there a Polawa document? Why are you here reading it? For me, personally, there are two clear reasons.
       As I was raised by my Dad and Grandpa, if a bully hits you, you hit them back as hard as you can. Stop them now - any less and they will be back again. This goes way back, before human societies, or laws, or “being nice.” Picture a deer, being attacked by a wolf. The deer doesn’t say “please,” he gives the wolf a solid kick in the jaw, and the wolf will back off. Might not bite anyone else again, either.

         The second reason is that not only were the officers my employees, they were in Law Enforcement, and the laws they enforce don’t allow them to what they did.This is a major component of our society. We are the government, we are designing our culture, and we need to be sure that what we design is what is being built. So I am responsible for the officers from this side of the equation, too. We don’t hire police to pull us off the street and beat us up, for their amusement.

     We hire police to catch criminals and bring them to Justice (as well as other things, like maintain order), that is not an issue. Quite a few Americans want the police to assault the alleged criminals on the spot, and that is not their job, but it happens, and that is an issue. And police are allowed to protect themselves, but shouldn’t be so scared that they have to kill suspects who aren’t a threat. Police have taken on the roles of judge, jury, and executioner, which is wrong. We have issues to resolve.


                               Back to 1996

     The judge in District Court had  found me not guilty of assaulting a police officer. While this saved me from an undeserved criminal record, it still left the criminals in the Honolulu Police Department.   
     Suffice it to say, I was not about to let this go.

     The District Court trial was on December 30, 1996. After being exonerated, I wrote to the ACLU in January 1997, to ask if they could help in my pursuit of justice. They replied that at that time they were very short of funds, and in fact did not even have an attorney on staff. They included an application with their letter, advising me that since they were relying solely on volunteer attorneys, it would take about four to five weeks for them to review and respond to my case. It sounded like they were receiving far more queries than they could handle. Judging from the large volume of people I had seen at the Public Defender's office, I suspected that quite a few people had more pressing needs than I did, so I didn't apply to the ACLU, but decided to talk to a private attorney.
     I had absolutely no idea which attorney to contact, so I called the Hawaii Bar Association. I explained that I had been beaten by police officers several months ago, and wanted to take them to court.  The person I talked to gave me several attorney's names and phone numbers, and suggested that I try  Arnold Phillips first. When I asked her if the recommendation was based on Phillips having a good win / loss record, she replied that they didn't keep track of anything like that. "He handles police misconduct," she said. "Call him first."    

     After having a phone conversation, Phillips and I set up an appointment at his office. Wendy accompanied me to the interview, and he talked to both of us about what had happened during the incident. He was encouraged by the fact that I had been found not guilty, and even more so when I mentioned that Wallace Aina had been one of my assailants. He had dealt with Aina more than once, he said. They (HPD) should have got rid of him a long time ago.
     Phillips asked if Wendy was willing to testify in court. Not only was she willing, she replied that she felt that she had been assaulted emotionally by the officers. I gave Phillips the pager number of my other witness, Steve Lauer, and the phone number of my Public Defender, Ms. Tulang. Phillips and I agreed that he would take my case on a contingency basis, and he gave me a contract to review and sign, if I agreed to the terms. We set up another meeting for a few days later, when he would take a  more in-depth statement from me.
     Phillips and I signed our contract on February 28, 1997, with the understanding that a $1500 retainer was due by me as soon as possible. I had explained that I was rather deeply in debt from my failed taxi business a few years earlier, had only $800 to start things off, but could cover the rest with payments. He agreed to this, and we were underway.

         From this point on, we will use the correspondence between Phillips and myself as the thread that ties different aspects of the case together, and it gets lengthy. At certain points, therefore, I’m going to put equally lengthy portions into a separate folder titled Documents. So: My Criminal History (potentially juicy!), my Interrogatories, and my and the officers’ Depositions will be found there. You will be notified when they come up.
         Because I did eventually file a suit, I was allowed to see all of the reports from the Police, the Police Commission, and the depositions of the officers. This is where the devil is in the details, but it is exhausting to read and pick apart the different accounts. It is also where the meat is, so be prepared.
         I have been as painstaking as possible in transcribing Phillips’ letters to me, and I say this because too often they didn’t seem to be in proper English. I didn’t feel like I was understanding them, and will complain about that in the course of the narrative. So - the oddities in Phillips’ letters are his, not mine, and they are as verbatim as possible.

         On March 1, 1997, Phillips sent me a letter reminding me that the $1500 retainer would be necessary to complete the preliminary matters and start the contract. He estimated that the cost of the trial and an expert witness would be in the $4000 to $7000 range, and suggested that I start early so the money would be available when we needed it. He also wanted to get a statement from Wendy and a copy of the criminal (District Court) trial in December. He  cautioned me against making any statements about filing a lawsuit, and wanted to get statements from all witnesses  "...at a stage when we are still in the investigation."    

     Phillips, From a March 5 letter:
     "There are now three cases that I have which involve Wallace Aina. Because of this number I think that we may be able to exercise some economies by sharing as many expenses as possible. For instance, it may be possible to save a considerable amount by sharing the same expert on all the cases."

     I wasn't sure what he meant by an "expert,"  but my questions were addressed (though not really answered) in a letter sent to "Albert" Arney:

     Phillips, May 21, 1997:
"Enclosed please find the information on an expert witness which I propose to consider to have review the case and give us an opinion.  The expert can also help guide us in the information that we will need to get from the City and County for him to make his conclusions. This information we will be getting when we enter the discovery portion of the case.
     "If you agree to use him I will commit and arrange for the payment of the fees. There is a $300 fee for retaining this expert and his fee of $150 per hour for evaluation and testimony. If you direct me to proceed I will find out exactly the total money up front will be before we proceed further."
     The information enclosed was a resume of Edward Moreland, who had been a special agent in the F.B.I., and was particularly experienced in investigating and testifying in civil rights cases. He was currently self employed as an expert witness in law enforcement, corrections, and civil rights matters. Phillips did not mention whether or not the fees quoted were totals, or my share if they were shared with his other clients.

     On April 17, the Police Commission wrote to me , informing me that after "the interview of all available witnesses and the review of all documented evidence," they "found that the officer(s) had acted accordingly within the guidelines established by the Honolulu Police Department.." Months later, I was able to review their reports, and found that this was where the conspiracy took root.

     A July 1 letter from Phillips informed me that the court transcript was ready to be picked up, and $150 was needed. The expert was ready to "come on board," and his fees would be due.

     On September 12, 1997, another letter to Albert arrived (the previous one had been correct):  "In response to your telephone call of Thursday September 11, 1997, this will acknowledge receipt of $350.00 paid toward the expenses. Enclosed please find the receipt on the transcript of the trial on the criminal charges. The next step is to get a statement by the investigator of the witness, you and Wendy. With this information we can move to have the expert proceed with his work. Then we will file suit. I have switched to another expert witness who has been used here in Hawaii on other cases and I am using him on one at this time. His fee for evaluation is $1825.00. His name is Frank Saunders and I am sending you further information on his track record. You will make the payments directly to him.
     "I think that it is the time to draw on the resources so that the expert can be retained. Let me know next week when we can expect to have Mr. Saunders' retainer available."

     I wasn't sure if I was still confused from the beating, but I was starting to have problems understanding Phillips' grammar. For example - " the receipt on the transcript of the trial " probably meant the receipt for the transcript(which unfortunately was not enclosed). What he meant by " ..a statement by the investigator of the witness, you and Wendy,"  though, was beyond me. (I speculated that he could have been referring to the Police Commission investigator interviewing Lauer, although I found out later that the P.C. hadn't contacted Lauer.)  And I was dismayed that he had changed expert witnesses, especially to one who cost $1500 more than the original.

     The information on Saunders'  track record was that he had spent 15 years in the Santa Monica (California) Police Department, and since 1981 had operated a private investigation and security firm. Like Moreland, Saunders was an expert witness, particularly involving police procedures and misconduct. His resume included lists of of awards and court appearances, and thank you letters from clients.
     I had  no resources. I had asked my family for financial help, and they had loaned me as much as they could already. Most of what I was making went toward my credit card debts and the high cost of living in Hawai'i. In an effort to minimize expenses, I left Wendy's father's house and took up residence in a tent in the mountains.
     You may wonder about communications between Phillips and me. Generally, when I called his office, I was only able to leave a message with his answering service. I had no phone of my own, so he usually replied by mail. Sometimes we actually talked to each other.

     Phillips and Saunders came to my workplace one morning - fortunately, I’d arrived about half an hour before my shift started, and Wendy was with me. Saunders talked to both of us, and, as Phillips had, asked Wendy if she would be willing to testify in court. As she had related to Phillips, Wendy said that she felt that she had been assaulted emotionally. She would be glad to testify, but she was worried for her own safety, and that of her family's, and wanted protection. I volunteered to take on that responsibility, explaining to them all that the attorney's job was to bring the lawsuit, the witnesses' was to advise and testify, and none of their duties was to provide protection. When they pressed Wendy about her fears, she could only reply that they  (the defendants) were stalking her daughter. I could see that Saunders and Phillips weren't comfortable with this, but they moved on to other questions.
     One of the questions that Wendy had was: How much money were we looking at getting if we won the lawsuit?  Phillips replied that at that point he had received the highest cash amount ever from the City of Honolulu, for police misconduct, and mentioned a figure over $200,000 (I don't recall the exact amount).  I hadn't even thought about the procedure as a money matter - I was pursuing this as a way of bringing the officers to justice, and having them disciplined.

     Phillips,  September 22, 1997:
     "Enclosed is the letter to Shepard Ginandes for the treatment and evaluation that I would like for you to receive. Please review, sign and return if you agree to this arrangement."
     I had met with Phillips at a downtown restaurant, where we discussed the situation. He wanted me to get a medical evaluation regarding my head trauma / injury, as this would prove damages in a court or settlement scenario. The therapist he recommended was Dr. Shepard Ginandes, and I had had a preliminary visit with him. My recollection of my follow-up  conversation with Phillips was that I did not have the financial resources to engage Dr. Ginandes' services, but if he (Ginandes) would be willing to take my case on a contingency basis - as Phillips had - when we won the case, Ginandes would be paid. If we did not win, I would be responsible for the office visits.
     The September 22 letter did not include a letter / contract with Dr. Ginandes.

     At the downtown meeting, Phillips also advised me that I did not need Wendy as a witness. Her emotional instability would probably damage my case, and he suggested that I distance myself from her, if that was possible. "Your testimony alone will be enough to convict," he said. At the time, that was a liberating statement, as relations between me, Wendy, and her family had deteriorated significantly.

     Phillips, December 16, 1997:
     "This is a status report on your case. We are proceeding on another police misconduct case and it is set for trial in August. As part of that preparation we have retained an expert from California. I would propose that we use him in your case also. His name is Frank Saunders and he is very experienced and successful.
    "I have had periodic reports from Dr. Shepard Ginandes regarding treatment and evaluation. He says that all is proceeding well. He is also being used in the other case now underway.
    "There has been no further messages from (Wendy) it appears that she has forgotten about it and that may be a benefit."

     Saunders had now been introduced to me three times. It didn't seem significant to me at the time . I was slogging through life one day at a time.
     It became obvious to me that I was not going to finance this lawsuit while living in Hawai'i. I started casting around for better financial alternatives, and in the spring of 1998 was hired by Princess Tours to drive for them in Alaska. I put my possessions into a locker, and took my cat, myself, and the clothes on my back to Alaska at the end of winter, 1998.

     Phillips, June 27, 1997:
     "The costs for the case are estimates but you can expect them to follow this range:
      filing fee and service    $175
      expert Saunders   $1,800 deposit and same for trial testimony
      expert Ginandes   $1,000
      deposition of police officers     $2,500
     "If you have the deposit to get to Saunders, we can file the lawsuit, and we can take the deposition of the police officers we should be able to get this case in shape for settlement or trial. If we have to go to trial then we can expect about $4,000 to $5,000 more expenses.
     ...
     "Enclosed is the letter to Shepard Ginandes for the treatment and evalauation that I would like for you to receive. Please review, sign and return if you agree to this arrangement. ..."
     I was already in Alaska at this time. I had seen Dr. Ginandes from October 1997 till April 03 1998, under the impression that he would bill us (me) when the lawsuit was concluded. The treatment and evaluation had already been completed by the time I received this letter, but the letter to Dr. Ginandes was not enclosed.
     It was becoming obvious that Phillips could not keep track of what he was doing, especially regarding Saunders and Ginandes. At the time, it seemed like only minor incompetence, but it was a trend with disastrous consequences.

      I can't locate my copies of  letters that I sent to Mr. Phillips from Alaska that summer, so will have to infer some of my correspondence from his letters to me.

     Phillips, July 16, 1998:
     "Please accept my apologizes for all the questions that the last letter raised.
     "The depositions are questions and answers that are taken of a witness who is under oath and it is taken down and transcribed by a court reporter. It is the way that you can have a witness tell their story and have a record of it so that they cannot change.
     "You can pay Saunders and you have the correct address.
     "The $2,500 should be on deposit in the trust account before we begin. From that we will pay the filing fee and any investigation and get a start on the police officers' depositions.
     "We will need to show that this treatment you got - stopping someone, treating them improperly, and then bringing criminal charges against them - is wide spread. A way to do that is to go through all of the other cases under this section of the law that you were charged under and interview those people.
     "This is necessary because it will be our responsibility to show that the city and county knew about this and did nothing. To prove that we need to go back over the records for several years. It may well be hundreds and hundreds of records.
     "For this kind of analysis we can use law students, but they must be paid. If I had to give you a rough estimate that might be $3,000.
     ""Also would you write me and outline for me if you have seen anyone since leaving HI for the psychological injuries, if not you may want to see someone up there. This is if you are having sleep problems or high anxiety or appetite changes. You may want to look up post traumatic stress disorder for more more information.  ..."

     So, another $3,000 had been added to Mr. Phillips' estimate from a month earlier. I wondered - if  the treatment I got from the officers was indeed widespread, wouldn't there be more lawsuits involving that - and would I be the only one financing the research on it?

     From a rough draft - from me - in July:
      "No, I have not seen anyone for the psychological injuries since leaving Hawai'i, because: 1) this is an isolated area. There's no doctor of any kind for over 100 miles (Fairbanks), and  2)  I couldn't afford it anyhow.  ... On the other hand, yes, I have had some good psychological input. Dr. Ginandes primarily worked through hypnosis (with me, anyhow), reinforcing my own consolidation, clarification, and motivation. Using the techniques he taught me, I have invoked him and his therapeutic trances / advice several times per week, with positive effect. ...
     "Yes, I do suffer from anxiety and lack of sleep, but ...  it  is only related to the trauma of September, 1996, specifically the financial corner I've painted myself into ...
     " ...I do feel that getting knocked unconscious had bad mental consequences. Whereas before these incidences (Sept.1989 and Sept. 1996) I had a pretty high-powered life, existence since then has been characterized by slow and feeble thinking. It has been a long time between poor quality thoughts. One of the points I want to make in our case  ...  is that head trauma should not be used on anyone except in self defense, as it does not "knock sense" into anybody. The primary sensation I get is that a lot of my synapses have separated.  ...
     "Originally, when I complained to the Police Commission, I would have been satisfied if the officers were fired, or at least disciplined. When the Commission declined that, my discontent went up. ... As time has gone on I'm coming to the position that I don't want any settlement unless the officers are fired forever from any law enforcement jobs, and / or spend some time behind bars, like the criminals they are.
     "If, as you say, this treatment is widespread, then we should pursue the strongest discipline possible - not for my revenge, but to send a strong message (precedent): that this kind of action by officers is: 1) counter-productive to real law enforcement,  2) injurious to the citizenry, and, 3) unacceptable.
     "I have the $1,800 for Saunders ; I will have the filing fee and about $2,500 by the end of August, but after September 18 I have no idea what will happen, as this job in Alaska is seasonal. ... I still owe about $15,000, mostly to credit card collectors, from my disastrous years driving taxi ... have put off a lot of dental work ... I'm not saying this to cry, just to let you know the situation. Right now I don't know when or how I'm going to come up with that research money."

     Phillips, August 19, 1998:
     " ... We will proceed to file the lawsuit within two years from the date of the incident. I will make every attempt to have it there for your review and signature; however that is not necessary and time may not allow it.
     "Frank Saunders has received the check for $1,800.00 and he called me. I have had him hold that check until he gets the final go ahead.
     "Please understand that these are all tough cases. There is very little likelihood that the police officers will be disciplined in any way or that there will be any criminal charges. You will probably receive some judgment in the $20,000 to $50,000.
     "We will sue for constitutional violation of conspiring to coverup for the violation of your civil rights, false arrest, false imprisonment, excessive force, and any other cause of action that fits the circumstances. The judges here are tough on people complaining of police misconduct. The city will try to make you out as a person who deserved what he got. You must be prepared to loose.
     "But if you are willing to go ahead then send on the $2,500 I will take a $330.00 balance on the retainer and start the expenses for filing out of this amount.
     "It is not necessary that you be in HI for any matters relating to your case. I would like to avoid getting (Wendy) involved again. If there are jobs on the Mainland that you can go to that would be best probably. You can see some one for an assessment about the psychological injury and we can see if they are going to name Wendy as a witness.
     "I go to trial against Aina in another case on the 29th of September which is the the statute of  limitations for your case. Thank you for your courtesy and attention to this matter."

     I was perplexed by Phillips' statement that there was very little likelihood that the officers would be disciplined or have criminal charges brought against them. Even more, I was offended by the notion that judges would be tough on people complaining of police misconduct. Judges are the ultimate custodians of our rights - didn't they take pride in upholding the law impartially, with equal justice for all ?  The comment about being prepared to lose was lost on me - in the rough draft of my next letter to Phillips is:

     "In no way am I prepared to lose ... I will not rest until these criminals are brought to justice. It will be better for all concerned if I win early."   

     What disturbed most me was that Phillips had apparently lost track of the date that our statute of limitations ran out,  which he had told me earlier was two years from the date of the incident. The incident had been on September 26, 1996, and here was Phillips saying "I go to trial against Aina ... on the 29th of September, which is the statute of limitations for your case."
     Mail was taking about one week to get from central Alaska to Honolulu. I didn't take any chances with a letter, but called Phillips long distance to be sure we didn't miss the deadline. As it turned out, we got in just under the wire, on the afternoon of the 25th.
     Despite my critical tone about Mr. Phillips, please note that on August 19, 1998, I still owed a balance of $330 on the retainer. It is obvious that he waited until the retainer was all in before he filed suit, but it is also obvious that he was poised and prepared when the retainer was received, with the exception being that he had the date (statute of limitations) wrong.

     Phillips, October 14, 1998:
     "Enclosed is a copy of the complaint that was filed in your case. It made the papers that following Sunday.
     "Presently I am working on the research so that we can get the information to show that the complaint procedure is not working. There is a Rule 16 hearing set for December 28th.
     "The trial against Aina ended in a mistrial and we will go again in the spring of next year."

     The complaint was a 24 page document in which we brought charges against officers Wallace Aina,  Ronald Lopes, Dru Akagi, and David Wingo, as well as Police Chief Michael Nakamura, the City and County of Honolulu, and Jane and John Does 1-10.
     The Causes of Action were: 1) Excessive use of force, 2) False imprisonment, 3) Unlawful seizure, 4) Initiation and pursuit of prosecution without probable cause, 5) Supervisory liability of  the City and County, the Police Department, Police Chief, and John and Jane Does, 6) Assault and battery, 7) Malicious prosecution, and 8) Conspiracy to violate civil rights.
     Cause # 5 in particular went into detail alleging that the Police Chief and John and Jane Does in the City were "...aware of the practice of charging citizens to cover improper police activity and having all officers present or with knowledge of the activity join in this conspiracy..."  and were "...also aware that inaction ... to demand accountability for this type of conduct would have the effect of endorsing this type of behavior..."
     " ... the City and County of Honolulu intentionally, knowingly, recklessly, or with deliberate indifference to the rights of the inhabitants of the City and County of Honolulu failed to instruct, supervise, control, and or discipline the defendant police officers..."
     "City and County of Honolulu through it's Honolulu Police Department failed to adequately respond to and investigate complaints regarding officer misconduct by the citizenry, including, but not limited to, complaints regarding the use of deadly, excessive or unreasonable force, and bringing false charges to cover illegal conduct to escape liability creating a policy, practice, custom or atmosphere where such illegal and unconstitutional behavior is ratified, condoned or approved in deliberate indifference to the rights of the public at large..."

     It had been my impression that mine was not an isolated case, but judging from these and other statements, police brutality was common in Honolulu. No doubt Mr. Phillips - as he handled multiple police misconduct cases - had far more information about it than the general public, or the media. Or perhaps those law students were busy doing research on the subject already. At any rate, I felt vindicated in making my claims, and proud to be taking a stand. Overall, I was satisfied with the complaint.
     There were a few errors that I noticed when I reviewed the document, and I sent the corrections to Mr. Phillips as soon as I could. Once again I was called Albert, rather than Alfred, and at least three times I was referred to as "her." The date of the incident was listed as September 26, 1995  instead of 1996, and the date of the District Court Criminal trial as December 10, 1996, instead of December 30. Listed among my financial losses stemming from the incident was a cost of criminal defense, when in fact I had gone to the Public Defender, whose services cost me nothing. I had no idea whether or not those were critical items, but thought I should mention them.

     I had by this time left Alaska and was staying with a sister, and have some copies of my letters.

     A. Arney, October 28, 1998:
     "What I'm looking forward to now is being prepared for absolutely every aspect of offense and defense in the trial. I have lists of what I consider relevant details, but I don't want to flood you with trivia. For example : 1) do the photos taken when I was booked show evidence of blows to the face - are such photos admissible? - could they have been tampered with ?  2) Wendy did not tell the Police Commission that she saw the officers hitting me (she said she would if she had "protection," as you may recall) - (actually, she did - see PC II) - does that make them (P.C.) and the City less culpable?  3) are the police allowed to cite my arrest record, and what what is a good approach to dealing with that?  4) would a list of character witnesses be helpful / allowed?  5) I called 911 three times in the summer of 1996 because of altercations with Wendy and / or her family. I also called Joe Natividad (C.I.D.)  and H.P.D.  several times in '94  and '95  because my room-mate at the time was being assaulted by her boyfriend. Would this be evidence of my trust in and good relations with H.P.D., or is it best left unmentioned?  6) etc, etc, etc."

     Phillips, December 27, 1998:
     "We are going to file an amended complaint to correct the errors which you pointed out.
     "Also, last week I got an appointment with the administrative judge of the Honolulu District Court so that we can be allowed to go in and review the harassment cases for 1994 -- 1996. We are going to be looking for cases that were brought and dismissed or went to court and were dismissed. We will be interviewing these persons to see if we can find evidence of other situations where the charge was a cover for the unlawful acts of the officers.
     "The research is being done by a lawyer from Minnesota who has not passed the Hawaii bar exam. He is going to work for $8.00 per hour as billed, with a bonus when the attorneys fees are collected at the end of the case.
     "Please let me know if you can put $500 per month in the expense account so that we can pay for this research. My estimate is that we can complete this in about three months."

     Arney, January 4, 1999 (rough draft):
     "I understand reviewing the harassment cases, and only want to suggest that you keep an eye out for those cases that went to court and were won by by the defendants, as in my case.
     "Also ... are these the only records available to us?  What about the ratio of complaints / discipline involving the officers concerned?  I gather that H.P.D. is paranoid about releasing names of officers disciplined to the public, but what about releasing them to a court proceeding?
     "In your letter of June 27, 1998, you mentioned an agreement / document with Dr. Ginandes. I never received such a document.  ..."

     Phillips,  January 13, 1999:
     "The amended complaint has been filed. We have a court date of November 9, 1999, for trial. This date will more than likely be changed because we have not been able to serve two of the officers. They are no longer employed by HPD and we will have to get their applications to see if we can track them through next of kin listings. It will take a minimum of 30 days for the City and County to respond to our requests for this information.
     "It will be helpful if you would send me a list of all your arrests and any convictions plus a list of treatment by any doctors providing the names and addresses and the dates with an indication of the condition that you were treated for at those times. This is information that the defendant are going to want later so it is appropriate to get it together now so that I can review it.
     "There are approximately 50 harassment cases per week and we only get the names  and we are attempting to contact them through the current phone book. We will just stay with this until we find the right combination."


     Arney, January 29, 1999:
     "With regards to your letter of  1-13-99, I've come up with what I know of my arrest and medical records. Unfortunately, I didn't bring these with me, so I can't be precise about the dates, but the list, at least, is short.
     "Within five hours of the police incident I was treated at Kaiser (Moanalua) Hospital. I gave you my copy of their report, and I believe you still have it.
     "Dr. Ginandes is the only other person who has treated me regarding this incident. I believe I visited him about 20 times, but that's just an estimate."
     "When I was injured in 1989, I was diagnosed and treated  by chiropractor Scott Ogata (now deceased), and by Straub Clinic, both in Honolulu. This was roughly 1990 - 1992. The full reports are in storage in Honolulu.

     "I've been arrested four times, only one of which resulted in a "conviction.":
     "1) About 1974 I missed payment on a traffic or parking ticket and had to wait while a bench warrant was served. A Honolulu Sheriff arrested me and took me to court, where I paid the fine. This was the only conviction.
     "2) In or about 1986 I was arrested on a DUI charge, but the H.P.D. breathalyzer reading was 0.000, and I was returned to my vehicle without being charged.
     "3) On or about March 15 1989 I was arrested for cashing a stolen check. In this case I was set up by a "friend" (whose girlfriend I'd known longer than he did) who took the money and left Hawaii. I wanted to press charges, but  H.P.D. discouraged that.  H.P.D., likewise, did not charge me.
     "4) On or about September 26, 1996 I was beaten unconscious, arrested, and charged with harassment. This one you know about ... I was found not guilty in court.
     "All of these occurred in Honolulu, and should be on file either at H.P.D. or the Sheriff's office.
     "I trust that H.P.D. has to share these records with us. In the DUI case I was driving poorly, as I had dropped a (Burger King) Whopper onto my steering wheel, shift lever, and clutch pedal. The officer writing the report tried to get the breathalyzer operator to allow him to write some % of alcohol in, but she refused to go along.
     "In the stolen check incident, I was really angry about being set up, but the investigator who interviewed me was quite adamant in insisting that I would be locked up for hours, perhaps days, if I insisted on making a statement.
     "In any event, if their accounts vary from mine, I want to be prepared to deal with that."




     Phillips, March 10, 1999:
     "Presently we are still trying to serve some of the officers they are no longer with the department. We have asked for their next of kin information from the employment application to try and get a line on where they are.
     "The research for other harassment cases is going slow. We have not found any in 1993 and we are now going back from 1996. We have a list of a dozen or so cases which were tried and may be of some help. We will know after we talk to the attorneys for those defendants."   

     Phillips, March 11, 1999:
     "Enclosed are the interrogatories that have been filed by the defendants. These are written questions requiring written answers which will be notarized.
     "Please provide me with a draft of your answers to each question. I will prepare a typed set and return them to you for your signature and notary.
     "We have thirty days to do this so return them to me asap.
     Attached to this letter was handwritten note:  "also will need your tax returns for last 10 years - if you don't have them call IRS to get copies - problems? let me know."

     From the rough draft of my reply, March 12:
     "If there could be worse timing for most of this, I don't want to know what it is. April is tax time in the U.S. ... I have had zero results trying to call the IRS for assistance or to request forms ... I have about two dozen "things" to take care of before flying to Alaska to work for Princess again.
     "One of the effects of being beaten on the head is that I have the capacity to handle only one thing at a time. As capital is of the essence, I have to prioritize getting back to Alaska. I am not trying to be disingenuous about this, or "being a victim," ... I have committed myself to Princess in Alaska this summer ... I must take care of these obligations.
     "Is this request for tax records a Civil Court requirement, or just requested by the defendants' counsel? Do the defendants have to produce their  tax records for the last ten years?  Is this equal protection under the law?”    

     Phillips, March 12, 1999
     Interrogatories "...are written questions requiring written answers which will be notarized ..."                                                        
                In the interests of paring down this exhaustive tome, my answers to the Interrogatories have been moved to the Documents section of Polawa.
                                             
     Phillips, to "Albert" Arney, April 13, 1999:
     "Please let me know what the status is on the tax returns and do you have any other of the documents on the attached request for documents"

     The attached request, called Exhibit "A," included:
     "All documents containing statements or summary of statements taken of or from witnesses and parties herein. ... Any written statements ... All correspondence, reports, written statements ... All reports, including investigative reports and experts' reports ...All test results ... All photographs, documents, and exhibits ... All drawings, graphs, maps, plan, or diagram ...copy of your respective Federal Income Tax Returns for the ten years preceding the year of the incident, for the year of the incident, and for the years following the incident."  (Now this was a request for 13 years of back tax records.) " ... Copy of medical reports and statements of costs regarding treatment of all injuries you claim to have suffered as a result of this incident."

     Arney, April 21:
     "The tax returns have been ordered - the form states that it may take up to 60 days. I am curious. Are back tax returns required by the court, or do HPD attorneys want them so they can do a hostile audit?
     "Regarding Exhibit "A," the only documents I have with me are those that are those that you have sent - letters and the complaint as we filed it, etc.
     "Others may include:
     "Statements by me, Wendy, or security guard Steven (Lauer) to Public Defender Debbie Tulang and / or Mr. Cluney at the Police Commission.
     "Mr. Saunders.
     (Photos) " a. Initial photo taken when I was "booked" at H.P.D.  b.  photos by Mr. Cluney at Police Commission two days after the incident.
     "Kaiser Moanalua Hospital and Dr. Ginandez.
     "I have none of these with me."

     I had been offended by the interrogatories, feeling that most of the personal information was irrelevant to the incident, and invasive of my privacy. Not realizing that this request for documents would be for our  Exhibit A, I associated it with the interrogatories, and was offended again. It had been frustrating and exhausting to finish answering the interrogatories while I prepared to leave for Alaska, and now they wanted more, it seemed.
     It was to get worse. Phillips called me on the phone one night, almost in a state of shock. The city had given him a copy of my criminal record, he said, and it was a couple inches thick. It included theft, forgery, domestic violence, harassment over the phone, and so on. For the most part, I had no idea what he was talking about, but to say that Phillips was upset would be putting it mildly. I did my best to calm him, saying repeatedly that except for the traffic ticket, I had no criminal record. He said that he would send the documents to me a.s.a.p., and I reminded him that I would be leaving for Alaska within the week. The package of documents arrived the day before I left.

     The packet that the City had given Mr. Phillips was indeed about two inches thick,
     And here, too I refer you to Documents. See “Criminal History.”

                                             
     Arney, May 12, 1999:
     "Arnold,
     "As I've said, it's difficult to review these HPD allegations. Aside from getting the time, place, and names correct, they proceeded to concoct a fictitious story.
     "I have (below) constructed a rough time line, looking moment by moment at the officers' different versions of how the scene developed. There are some terms that are obviously identical, as if they agreed on what to say, and what the story was to be. Other statements and versions vary, and some don't match at all. It's obvious to me that this is because they aren't reporting an incident they saw, they're trying to remember a story they contrived.
     "The two versions I have to work with are 1) the initial report (96-372-203) of 9-26-96, and   2) the interviews on 1-2-97, 3-11-97, and 3-12-97 by the Police Commission. If you have a transcript of the trial, I'm sure you'll find a few more variations in their statements. Understand that I am reviewing their stories; at no time do I mean to concur with their allegations, beyond the names, time, and place. I may include notes to point out contradictions or my observations, and these too are not to imply that I agree with the officers' stories. Again, Lopes is the only one to relate that he pushed me "back" - "After ... I regained my balance ... causing him to step back and sit on a tile wall that was behind him."  In all of the other officers' accounts this part of the "action" was totally missed.

                       Back to Documents: Timeline

     More from my May 12 letter:
     "Well, I apologize for the poor quality of this. I realize that you can do a comparative analysis of these allegations yourself  -  I just feel compelled to start picking these stories apart.
     "Obviously, it's far better to have an independent eyewitness, such as the security guard, whose testimony about the early moments of this incident clearly shows that the officers aren't being honest. If there was a 911 call, that's no big deal, but if there was not, and no dispatch, then Lopes, Aina, and Akagi are caught in their first lie.
     "It's interesting that HPD policy doesn't include a breathalyzer test for someone so strongly characterized as drunk and disorderly. I'm sure that a BAC test would have shown very little alcohol in me ; as I've stated, I had 4-5 beers in a four hour period. As I understand it, the human body metabolizes about one oz. of alcohol per hour (one "shot" or one beer) ... this would have placed me in a fairly lucid state, and would not have produced any "strong odor."
     "I'm not being misleading about this. I don't like to be drunk, I'm old enough to drink moderately and avoid getting disorderly, and I was not drunk or disorderly on the night of the incident. Wendy had Hepatitis B, and essentially avoided alcohol. Her extremely moderate consumption of a wine and a Kahlua milk neither made her drunk nor gave her any "strong odor." We drank that night because we were shooting pool at bars, and you can't monopolize an establishment's pool table for a few hours without contributing something to their business. The argument between Wendy and me had nothing to do with drinking.
     "I don't agree , either, with the current trend of blaming alcohol or drugs (or the devil, for that matter) for an individual's behavior. Nothing has ever made me forget right or wrong, or made me lose control. I am responsible for my actions.  I was not drunk and disorderly ; Lopes,  Akagi, Wingo, and Aina are lying.
     "Arnold, I have to take my road test and head down to Denali. I'll try to mail this this afternoon, & continue later.  Apologies, again."

     Phillips, June 7th, 1999:
     "Through an investigator  we have located Steven Lauer. He is living in South Carolina. I have a phone number and will be contacting him be phone. It is best that we travel there and take his deposition I think that the best time will be early October if this changes I will let you know.  As it looks unless he says something different we will probably have to go there."

     This was hardly good news. What had happened to "I would like to have an opportunity to get statements from all witnesses when we are still in the investigation".?  I had given Mr. Phillips the pager number for S. Lauer - and, for reference, Ms. Tulang's phone number - in February, 1997. All of a sudden - more than two years later - he (Phillips) had located the primary trial witness, one continent away! ??    Despite my shock, I tried not to be too critical. ...

     Arney, July 6th, 1999:
     "It's  good to hear that you have located Steven Lauer. A visit to South Carolina sounds expensive, but I'll try to be prepared.
     "The IRS writes that they have lost or destroyed information on my returns prior to 1990; I'm still waiting to hear from them regarding subsequent years. Just what is my my time limit for getting these in?  I'm sure most of my records are in storage in Honolulu.  I'm curious as to who is requesting these (tax returns), the court or the city attorneys? Do Lopes, etc., also have to produce theirs?
     "Also curious - has Aina come up with another trial?  Any luck locating Wingo?"
     "As always, my progress is slowest in the finance / time category. If the court date gets pushed back, that's fine with me."

     Phillips, August 10, 1999:
     "In response to your letter of July 6th ... The tax returns we will need to establish the loss of earnings. There is no way that we can resist this information being turned over.
     "The trial for Aina comes up on September 8th. I will keep you posted.
     "The deposition from Lauer is critical. I will talk with him first and then we will need to go take a video deposition which will mean that we will not have to bring him in for trial.
     "The trial date will probably be moved and end up during the fall of 2000. I want to try to at that time.
     "How are you doing with your thoughts and emotions, by that, I mean that I want you to follow- up on seeing if there are any lingering psychological results of the incident ?"

     Arney, Sept 10, 1999:
     "I am enclosing all the tax records available at this time. As you can see, the IRS record seems to stop at 1990. My concern was not because I have anything to hide, but that these documents might be lost in time. After all, the IRS only advises saving files for three years, whereas the city attorneys are asking for thirteen years back records. In any event, there is no way they are going to establish loss of earnings, as I will explain below.
     "You have twice mentioned that "we" will need to go to N. Carolina to take Lauer's deposition. Does that mean me ? I'll need to know this so I can arrange time off from work.
     "A loss of earnings strategy might have been viable after my 1989 injury, as my income was cut in half when I fell from tour driving to pizza delivery. In the 1996 police beating case, though, it will be a lost cause. As you can see, I essentially had no taxable income in 1995-96, whereas now I'm making more money than ever before.  That, however, is because 1) I am determined to bring Lopes, etc., to justice,  2) I am equally determined to pay back all the debts from my taxi years, and  3) I am not (yet) devoting half of my time to playing music and writing, which was my chosen lifestyle / career commitment prior to these (1989 & 1996) disasters.
     "I think the tack to take is that I was recovering from the 1989 injury when the HPD officers attacked me, and that they delayed that recovery.  In analogy ... if I had been forced underwater in 1989, at least I was coming up for a few breaths of air by 1996. Or, if the 1989 injury had been to my legs, I was still limping in 1996, but at least off crutches. Mental injuries are harder to define, but if we can present consistent aspects of my life, that should be more viable than tax records.
     .....
     "Until September 1989 I had a predictable and productive daily routine : I would end my day job as early as possible, then go to the U.H. library to write, or a rehearsal spot to play my trumpet. I was able to support myself comfortably and still save my energy for my creative endeavors. That is the standard I consider a normal life (for me) ; I won't consider myself "recovered" until I can again work on creative projects.
     "By  Sepember 1996 I had at least stabilized my income and was again practicing my trumpet regularly. The night before the attack by Lopes, Aina, Akagi, and Wingo I spent several hours working on exercises and songs ... I have not played since. My writing routine hadn't progressed as well, but I had finished several poems and a personal account of surviving Hurricane Iniki.  The only writing I've done since Sept. 1996 has been about this HPD case - mostly to you. My intention is to pick myself up one more time, get my life back on track, and be a productive person again. I mean productive in the sense of creative output, not monetary acquisition. If  making money had been an ambition in my life, I would have done things differently 30 years ago.

     "In terms of lingering psychological effects:
     "There is no doubt that my mind works much slower than it did before these injuries. Whereas I used to be able to listen to every individual in a (musical) group, and weave interconnecting melody lines, or hold entire stories, with settings, characters, and conversations in my mind         (note, 2003 : while performing live, or driving and narrating tours), now I handle things one step at a time, at 1 m.p.h.  I drive from point A to point B and hope that nothing distracts me.
     "While I expect that eventually I will have the financial space to return to the arts, I have no idea what my vision will be like at that time. An artist has to be able to tap into his subconscious mind as a pool of clear, life - giving water. If I try to dip into my mind I can't get past Lopes, Aina, Akagi, and Wingo polluting the surface.  If I close my eyes, in search of a song in my heart, I see Lopes jeering at me, as my head is snapped by an unseen HPD officer. That is the only song, the only poem I hear now : Lopes, Aina, Wingo, and Akagi are criminals. HPD, and the Police Commission have no business protecting criminals. 
     ....
     " ... To further think that this is o.k. with the Police Commission, the courts, and the public, I lose my faith in human beings ... the Hawaiian and American people. Besides being in the arts, I was a student government "nerd" in high school. I was class president every year until 7th grade and was nominated and ran for office every year through graduation.  I was one of those (now I think: fools) who truly believed that our government was by and for the people.     
     "After living in  Hawai'i for 35 years, and working in high risk jobs such as pizza delivery and  taxi driver, I no longer feel safe on the streets of Honolulu, because of HPD.  I consider "the incident" an attack on U.S. laws.  Lopes, Aina, Wingo, and Akagi set out to prove to me that they could do whatever they wanted - they didn't have to account to anybody, and there was nothing I could do about it. I do not expect to rest or feel safe as long as they are in "law enforcement" positions."

     Phillips, September 24, 1999 (to "Albert"):
     " ...you will not have to come to SC for the deposition. I think that I will get it out of the way in October.
     "You need to show some damage. If there are no loss of earnings then we have to have a medical professional treat you for the lack of creativity and mental slowness which you mention. If you can get someone there to treat you then we can use them.
     "The jury will want to see some damage or they will think that this just a personal matter. Let me know how your efforts go ..."

     I didn't expect that we would be able to prove much damage, or show direct links to the police beating. My experiences seeking treatment after the injury at E Noa Tours had made me pretty skeptical  -  the medical literature I had collected at that time said that even if there was no physical evidence of brain damage, the consequences of head injuries could be devastating  and long lasting. There had also seemed to be a great reluctance on the part of medical professionals to get involved in any litigation. Even though in 1990  I was only trying to get my treatment paid by the employer's workmen's compensation insurance, the first thing I was told by one doctor was, "I can't give you disability."  This was before he had even interviewed me, let alone done any tests.
     On the other hand, I was starting to realize that I was carrying the memories and visual images of the beating, and the trial, every waking moment of my life.  Whether I was training to get my  Commercial Drivers License,  driving and narrating tours,  hiking in a gorgeous national park, or talking with co-workers, I was visualizing and cursing those police officers. This was a tremendous drain - on my energy, if nothing else, and it made it almost impossible to socialize. Talking with friends wasn't too bad, but forming any kind of new relationship was out of the question. Sleep was achieved by eating a massive meal just before bedtime. At least I was able to sleep.
     The location in Alaska was too remote a place to seek out any kind of help for this, but my winter job was in Colorado, driving a city bus. I started to look around for any "medical professional" who might be able to help, or refer me to someone, not so much to get proof of damages for Phillips, but to drive these demons from my head.

     Phillips, October 4, 1999 (to "Albert"):
     "The C&C wants to take your deposition and you need to let me know you schedule for possibility of coming this way. They have asked for dates and you need to provide me w this information. They are late on the production of documents and this is going to affect the trial date.
     "The first deposition I want is the deposition of Lauer and he is in SC, but I need information from the County like the arrest reports for his deposition.
     "There is a possibility that I will take Lauer's deposition in October ... I will let you know."

     Arney, October 17, 1999:
     "I hope to be in Honolulu the week of Thanksgiving ... If the city wants a deposition it looks like that will be their best opportunity (Nov. 22-28).
     "I cannot tell you how disheartening it is to keep getting these letters addressed to Albert. Please delete that from your file, or computer bank, or secretary's brain cells, or whatever, and fill in my correct first name : ALFRED . This is not an ego "thing" (although I am proud to be named after my ancestor) ; I have heard of lawsuits failing because of incorrect punctuation. It's been almost three years, now.
     " ... I am trying to find a medical professional to advise, if not treat me, but America seems to be pretty much in the dark ages when it comes to brain trauma. When I sought treatment after the 1989 injury, the top psychiatrists at Kaiser and Straub had nothing to offer. They told me outright that they knew nothing about the subject, and could not refer me to anybody in Hawaii."

     (note - 2003 : I had corrected the "Albert" misname, when I reviewed our original complaint, and at least once or twice in phone conversations, and it was very disheartening to see again and again, especially as my correct name was on every envelope and letter that I sent to Phillips. In retrospect, I can't remember seeing any psychiatrist at Kaiser for the 1989 injury, but the one at Straub did relate to me that I would be his first patient suffering from a head injury. Perhaps he just couldn't refer me to anybody at Straub - I have since found out that there are indeed brain trauma units in Hawaii.)

     I was in Honolulu November 20-28, primarily to give my deposition, and to search through my locker, looking in particular for the documents and records that Phillips and the city were asking for. The date and time of the deposition had not been arranged yet, so one of the first things I did was to find a friend who was willing to let me use his cell phone 24 hours a day, and I called Phillips' office to confirm that I was in town and leave the phone number with his message service. I called in daily to repeat the message and let him know that I was standing by. He finally called late in the afternoon of the 22nd, and informed me that the city wanted to take the deposition the very next morning, if I could make it at 10 a.m.  I said yes, I could. He wanted me to review some documents that night so I would be prepared, and we arranged to meet so he could give them to me.
     The documents, it turned out, were the same ones that he had sent in the spring, with a few additional pages of the city attorney's response to our request for documents. There were the defendant officers'  incident / arrest reports, and their Police Commission interviews, as well as the police policies / procedures and reports of most of my interactions with H.P.D. (still not including the d.u.i. / d.w.e. arrest).  Phillips also wanted to meet with me  the next morning so he could prepare me for the deposition. We agreed to meet at a downtown restaurant at 8 a.m.           
     Phillips did not show up the next morning until about 9:25 a.m.  He looked  rather dragged out, or under the weather, or hung over. We had a brief conference over a hurried cup of coffee - I was eager to engage the enemy in combat, but Phillips advised caution. The city attorney would try to draw me out to make mistakes, he said. My best strategy would be to keep my statements as brief as possible, and answer "yes, no, or I don't recall,"  whenever that was appropriate.
     I was not prepared for the deposition, but that was not Mr. Phillips'  fault. Perhaps he could have shown up earlier, and given me more combat tips, but, as I was to learn, Civil Court is not about bringing criminals to justice, it is about money.

                  See DOCUMENTS  for My Deposition: November 23, 1999

     I was not as prepared for the deposition as I could have been, mostly because I thought it would be about the "incident," in particular my version  vs. the officers' versions. I had no problems remembering the night of the attack, and was confident that my remembrance of the truth would win out against the officers' attempted recollection of their fiction. Mr. Matsubara seemed fixated on whether or not I had been successful in my music and writing endeavors, especially financially, and whether or not I could prove that I suffered measurable psychological damage as a result of the police beating. I took as a given fact of life that everyone understood that certain people (artists) go into the arts because that is where their lives, their loves, and their souls find fulfillment. If an artist can create and produce his / her works, that is  success; if they happen to make money at it, or achieve popular acclaim, that is a bonus. And proving mental damage - even in the current medical literature that I could find in university libraries - seemed about as difficult as proving that one had seen a ghost. If someone had a hole through their brain, or bleeding inside it, that was considered pretty fair proof of damage, but thousands of cases recorded symptoms and complaints that indicated psychological changes and damage that were consistent, but were not accompanied by any physical evidence.  Mr. Phillips and I were to wrestle with these concepts quite a bit in the succeeding months.

     You will notice that I underlined several comments of mine during the deposition: "I was confused, and not thinking ... I was confused - they weren't helping me ... my mind wasn't working too well ... my thinking deteriorated pretty bad ... "  I am amazed at the popular misconception -  particularly  by defense lawyers - that persons suffering from brain trauma should be  held responsible for not making logical and intelligent decisions, like not seeing a doctor right away, or not requesting second opinions. After my first injury, I mostly wandered around for weeks, talking to trees - and it wasn't until a dispatcher informed me that my day's invoice was a month off (and I was sure that it was September, not October) that I even had a clue that I was out of whack. After the police beating, I didn't expect help or support, and mostly tried to just get to work every day. I didn't even know that there were intelligent (or not) decisions to be made.

     At the deposition, I had been informed that our trial date had been moved back from the fall of 2000 to March of 2000. The very next letter from Phillips indicated that it would be changed once again…

     Phillips, December 8, 1999:
     "Please let me know if November 13, 2000 is a good trial date for you."

     Arney, December 20:
     "In response to your last letter, November 13, 2000 will be a good trial date. Hopefully, this will be the last postponement.
     "I have quite a few questions regarding the situation ...
     "Are we still searching for Steve Lauer? Arrest record or not, he was quite credible at the first trial. What about convictions? I don't mind paying paying for this research, as long as it's not exorbitant.
     "As I recall, W. Matsubara requested copies of my Sunbums columns and hospital records from Straub (from my 1989 injury). Did he want more?"

     When I spoke to  Phillips on the day of the deposition, he had mentioned that Lauer had "an arrest record," although that was as specific as Phillips got. Was it for paying a traffic ticket late or for armed robbery?  One arrest or several? You know how America is nowadays - if you do something once, you have a "history" of doing it.  Was HPD - or the defendants - trying to intimidate him to keep him from testifying for me?  I certainly had questions.

     Phillips, December 19, 1999:
     "Please let me know how the "closed head injury" is going. It is a key factor in the damages in this case and I want it developed if we are going to use it."

     Arney, February 9, 2000:
     "It looks like I will be admitted to the Brain Injury Recovery Program ... There is probably evidence that I am measureably worse than I was after the Straub exams in 1990 - I guess that is the bad news and the good news. Anyway, it will take a little time, but I will keep you posted.
     “I am enclosing a few articles from the Journal of the A.M.A. that indicate what a slippery subject brain trauma can be. As you can see, the state of the art is to test a subject prior to and immediately after a suspected injury. Unfortunately, I was not in one of these studies, but at least you can see what the process is.
     "I find it hard to believe that we have to prove that being beaten on the head until one is unconscious is bad for your health, but, as you can see, the A.M.A. is on our side. That (Sept. 1999) issue of J.A.M.A.  includes several other pieces on the subject. There is also a head trauma unit on Oahu that we might want to check with for further information / backup / expert testimony. I'm not sure, but I think that they are either at Leahi or Kaneohe.
     "When I saw you in November you gave me a (second) set of documents. (note - 2003 - Reader may refer to the evening of Nov. 22, 1999, when Mr. Phillips gave  me essentially the same set of documents he had sent in the spring - "with a few additional pages of the city attorney's response to our request for documents")  Although I had already reviewed the initial 174 pages, there were six pages of W. Matsubara's responses to our request for documents, included as a preface. My review of these is as follows :
     1) "Records ... that pertain to the incident. No 'memo book entries,'  'radio transmissions,'  'dispatchers notes,' ... are known to exist.'"  (Bold 2020) "Does Matsubara mean that all records and logs from that date do not exist, or just those regarding the incident?  This is important because all of the officers' accounts begin with "sent via dispatch." (2003 - except Wingo's). Obviously, if H.P.D. logs of that evening exist, there should be a record somewhere of that "dispatch." As I've stated earlier, Lopes, Aina, Wingo, and Akagi are thus caught in their first lie. And just what is the H.P.D. policy regarding logs, 911 calls, dispatches, etc.?
     2) "I strongly object to 911 calls to police for assistance or to report a crime being defined as "criminal." (note - 2003 - sure enough, my 911 calls to report lost cell phones, purse snatching, windshield broken by passenger's jealous boyfriend, boyfriend threatening my life , etc., were reported by HPD as my criminal record.  Per W. Matsubara : A copy of the criminal history of the plaintiff.  -  "Documents, if any, responsive to this request are attached.") "It is my understanding that a criminal record only includes convictions ... not  unsubstantiated complaints or arrests. The only  "conviction" in all of these 174 pages involves the arrest in 1975 (report # 37064) which came about because I showed up one day late to pay a traffic ticket. Even though I had the money to pay for it, the D.M.V. insisted on serving a bench warrant.
     "In my May 2, 1999 letter to you I reviewed 14 police reports that had my name on them. You will notice that on p. 23, in my conclusion, that in seven (7) of these I called H.P.D. to report a loss or crime. In five (5) of the instances I was a victim. Since when is calling 911 or being victimized part of a criminal record?  My "criminal record" should be only three (3) pages             (report #37064, pp104-106).
     3) "Record of defendant officers' prior conduct not relevant to the incident."  "These records are relevant to H.P.D.'s failure to discipline (see #9). Furthermore, any complaints against either party should be treated equally - i,e.  if complaints against me are allowed,  all complaints against these officers should be allowed.  Complaint is spelled the same, we are all American citizens, etc. ..  I want to insist on equal treatment under the law.   ( 2003 especially if my reporting crimes was considered a crime...)
     5) "Mug shots of plaintiff". As I have stated, the Xerox copies I have are unacceptable, due to the poor quality of the images. The original photo should show evidence of blows to the head, multiple minor abrasions, etc.  I want to insist on that original photo in court.
     .....
     "Per your question last November, I am willing to "bankroll" all of these issues through all of the appeals necessary - to the Supreme Court, if we have to go that far. It is my understanding that our complaint includes not only assault and battery in 1996, but also perjury and conspiracy. The more I look at the Police Commission report, the more it looks like they are involved in obstruction of justice.
     "You also mentioned that S. Lauer seems to have acquired an arrest record. Did these come about after he testified  in my favor in 1996?  Did officers start harassing / intimidating him regarding further testimony? Is this possibly why he seems to have fled to the mainland?

     "In any event, the prevalence of plea bargaining and immunity in criminal cases suggests that even real criminals can be credible witnesses. Contrary to the Police Commission's assertions, we do have two witnesses - Lauer and Wendy. I understand and agree with your reluctance to use  Wendy, but the Commission lists their interviews with her as with a witness, then in their conclusion states that there were no witnesses. ...
     "Are we allowed to use testimony from the first trial?  Lauer's, for example, if he can't be found, or the officers', to see how their testimony changed (Akagi's in particular)?  (note 2003 - I was still under the impression that Akagi had stated that he was pre-occupied with Wendy, and did not allege that I pushed Lopes, or see Lopes push me.)
     "To return to the first subject - I was examined by the head of the Brain Injury Recovery Program, and he wants to get me started, but we have to wait for the health insurance to come through. Otherwise, I will have to come up with money myself; either course is going to take a few months. As I said, I will keep you posted. ...                                                                                 
     Phillips, March 8th, 2000:
     "Thank you for the information on TBI. We will need to develop this if  it is to be a factor in the damages in this case. Please let me know who the doctors are and what the course of treatment is. The main question for them is "can they state that the injury came from the beating?"
     "Let me know how this develops so that it doesn't get away from us."

     Phillips, March 9th, 2000:
     "We are required to provide our experts with resume and report by May 15th. Check with your doctors and see if they can come up with a definitive report by that time or call or email me so that we can discuss this."   

     Arney, March 17:
     "I'm not sure what you mean by "resume" in your March 9 letter?  Does that refer to the doctor's resume?
     "As I wrote in my Feb. 9 letter, we are waiting for my term of employment here ... to mature so I can get on their group insurance plan. ... Exams and treatment have not begun yet.
     "It is my understanding that the articles I sent you from the  9, 1999 issue of the J.A.M.A. are pretty much state of the art. If CAT and MRI scans had been done within a day or two of the incident, they could have shown a direct relationship between the beating and the injuries; as almost four years have passed, though, I have my doubts.
     "Further research by the A.M.A. indicates that ALL blows to the head are detrimental. This even includes athletes "heading" the ball in soccer games, which is far less severe that being beaten to the point of unconsciousness. That's why I mentioned the head trauma units at Leahi or Kaneohe as being possible sources of expert testimony. It is my understanding that even though a specific injury cannot be measured it can still be considered detrimental.
     "Anyhow, I will be eligible for the insurance at the end of this month. Even if it won't cover me, I plan to get on the T.B.I. program, because I know full well that that beating was detrimental and was injurious. I definitely will keep the May 15 deadline in mind, and will press for a speedy report."

     Phillips, April 13th, 2000:
     "The resume is a document from the doctor and any expert that we will use setting out his education, employment, work in the field etc. to show that he is qualified to be an expert. ... What we need to determine is if we are going to claim that there is a closed head injury we will need to use medical records and testimony from treating doctors to show that injury and the connection to the beating. It is just a fact that there was no immediate cat scan or other medical procedure that would show that the injury is related to the beating. However, if you can state that you have received no other injury to the head from time of incident to the diagnosis then we will have to go with that as our evidence. It should be enough for the doctor to give an opinion on the causation being from the beating. We can ask him to assume that it is true that you have not had any other injury to the head if that is the case.
     "We have the May 15th deadline and so it is time to decide are we going to go with the head injury and if so we need to get a new new court date far enough in advance to allow for treatments and to get reports from doctors. You might give me the name and telephone number of the doctors and I will call them from here to discuss this.
     "If we are going on the beating it is excessive force if you believe us and I do not know if we need to have to have an expert testify to this that would save us some money."

     Arney, May 4, 2000:
     "I'm sending you the neurologist's report, although I doubt that it will be very useful. I asked Dr. McIntosh if he could provide a statistical revue of T.B.I. and a resume, neither of which he included.  MRI scans could prove relevant, but the Dr. doesn't want to go through with that until my insurance comes through and I can get on his Brain Injury Recovery program. In terms of proving damages, that sounds like something worth pursuing ... as much as I don't want to prolong this process, perhaps we should extend the trial date one more time.  I apologize for the delays, but can't speed up the insurance process.
     "Arnold, I suspect that we are somewhat out of synch in our respective views of this case. You may recall that you asked me why I am "doing this", last November.
     "I am persuing this case because  1) Lopes, Aina, Wingo and Akagi have commited some serious crimes, for which they should be held accountable, and  2) their superiors, particularly the Police Commission, failed to do their jobs, and they should be held accountable also. I am NOT after money acquired from beguiled taxpayers. What I hope is that we will get a unanimous verdict of "guilty", and have this case referred to the criminal court.
     "On the other hand, I realize that you are engaged in this as a professional, and have to make a living at it. The more injury we can prove, the higher the award. I have no problem with that, but, as I stated, that's not why I'm involved in this litigation. I want justice, and equal treatment under the law.
     "I don't want you to lose faith in this because I can't prove the extent of my injuries. I AM willing to increase my payments to you, if we can alter or add a clause to our original contract. In your letter of Aug. 19 - '98 you stated that I might be awarded $20,000 to 50,000.  I'm willing to guarantee a minimum  of $10,000 to you, if we win the case and are awarded less than $20,000. In other words, I will make up the difference.
     "I am also willing to pay you $5,000 in the event that we should lose - beyond the retainer and the research money I've sent you already  -  but only if all the evidence is requested, and all witnesses are included. If this should go into appeals, I want to be able to take everything as far as the Supreme Court.
     "In that same letter (8-19-98), you advised that I should be prepared to lose. I am only prepared to lose a round, and expect to go on to the next. To appeal, in this instance. If this lasts until my dying day, I will not accept defeat.
     "I was appalled to hear you say  that this could come down to my words against the defendants'. In the first trial the judge agreed that the officers were not credible; this was based on my word and Lauer's vs. the officers'. The documents you've sent to me for revue (and others that I've not seen, such as the trial transcript), are full of statements that should further erode the defendants' credibility. These include conflicting statements, omissions, and outright lies. ... How can the defendants assert that they were "sent via dispatch" when there was no such dispatch? ... How can the Police Commission assert that there were no other  (witnesses) when Lauer appeared and testified  at the trial?  I'm certain that I gave Lauer's pager to either Cluney or Mrkva (and why would I not?), and they could have picked that up from the trial even if I didn't.

   (note:  The day of my deposition was when Phillips told me that it could come down to my word against the officers'.  And, on revue, the judge for the 12-30-96 trial did not say that the officers weren't credible, he said that credibility is an issue in all cases.)
     "(Wendy) and Lauer are already listed as witnesses, in the P.C. report and the first trial, respectively. I still understand that Wendy is a weak witness, but if  for some unfathomable reason all the other evidence is not allowed, I think we should have her in reserve. As it is, I still don't know where she is living, and her children are decidedly uncooperative. Like Lauer, she is an unlocatable witness. Please apply whatever is necessary to have them acknowledged; even if we can't call them in person, they have testified in my favor. Please request that ALL documents, from 911 calls to the defendant's depositions are allowed as evidence. I suppose that the $ amounts are pretty paltrey, but I feel compelled to offer them as a gesture of good faith and commitment.
     .....
     "I will go through with the neurological tests - regardless of deadlines - for my own knowledge and peace of mind. Chances are they will not show damage specific to the September 1996 incident. I honestly have no idea. If you think it would be worthwhile to postpone the trial date one more time I will go along with your judgement. Personally, I would rather get this going.
     "I know I've mentioned this before. If the Police Commission is dropping the ball on discipline cases, the officers' discipline records are relatively meaningless. What is the record of complaints against them, in particular, complaints for which they would be arrested if they were "civilians'?  This seems important to me in terms of equal treatment. If Matsubara is going to question me about my complaint record, you should be allowed to question the defendants about theirs. As you've related, Wallace Aina seems to be quite the loose cannon."

     Phillips, May 16th, 2000:
     "The trial has been reset for May 22, 2001 that should give us time to thoroughly prove the closed head injury. We need to look at this carefully.
     "Enclosed is the bill from Ginandes. Please start to pay this off.
     "We will need soon to travel for Lauer's deposition and I will let you know in time to arrange for the costs.
     "Hang in there it is a long road but it is worth it."

   ( note : I'd thought that Dr. Ginandes was retained on a contingency basis, and would be paid when we won the trial  ... also thought that his bill was $1000 - per Phillips'  letter of June 27, 1998. The statement enclosed was a bill for $3203.20. It was rather a shock. )

     Phillips, July 19th, 2000:
     "Enclosed is the trial schedule. I am tracking down S. Lauer. When we find him I will need to travel there to take his deposition. If the doctor there finds a connection with your injury and the beating here then we will need to get his deposition. ... Please keep me advised of how it is going with the doctor there."
     The trial had been rescheduled again to May 22, 2001, before the Honorable Alan C. Kay, Senior United States District Judge.

     Arney, August 3, 2000:
     "I've received your letter of July 19, and the trial schedule. Will I have to be present for any of the pre-trial conferences, or will any input from me be required?
     "The insurance finally came through, and I hope to start taking some tests within a month. I will let you know the results as soon as possible."

     Phillips, August 11th, 2000:
     "We are on the trail of Steve Lauer. The last time we had him we did not move fast enough to get his deposition. This time I want to move quickly to get a statement and set up a deposition. If we take a video taped deposition we will not have to bring him out for the trial.
     "Let me know how we are on expense money. We need to travel for Lauer, get the report and deposition from doctor in CO and the depositions of the police officers. ... Glad to know that the insurance is kicking in for coverage."

     Arney, August 27, 2000:
     " ... the HMO insurance finally came through, but I have to pay the full premium - almost $200 / month -  money I would prefer to use elsewhere. I was scheduled to see the doctor in September, but he will be out of town, so my visit has been changed to early October.
     "I absolutely had to repair three teeth, so have not increased my available funds recently. As it stands, I have $2500 available. ...                                   
     "I thought that we took the defendants' depositions in 1998. If that is still pending, it could work to our advantage, as their accounts vary. It seems obvious to me that every time they make a statement they erode their credibility."

     Phillips, August 27th, 2000:
     "We have found Steve Lauer and I spoke to him on Saturday. He is willing to help in anyway that he can. He does not remember you pushing any police personnel.
     "I would like to take his deposition. He is now in Florida. He seems like he would make a good witness. I will probably take his deposition on video tape so that we can use the testimony without having to fly him in for the trial.
     "We are going to have to spend some money here for a copy of your deposition which taken  ($820.00), Steve Lauer ($1300 - 1700 transportation and deposition in Florida).
     "Finally there is a deadline November 20th for the turning in of the experts reports. This is the deadline for the medical reports. Please let me know if we will have a report by this time from the doctor there.  I am not certain that we want to use Dr. Ginandes. ... I would prefer to use other medical witness to establish the injury and the connection to the beating."

     Arney, September 6, 2000:
     "I hope that I understand your letter of August 27 correctly. Enclosed is $1700 for a trip to Florida to take Steve Lauer's deposition. This will leave me with $800 available now, with the probability that I will have $800 per month after that. I'll just have to meet these expenses in their order of priority. Please let me know what that is.
     As I related in my last letter, the neurologist's tests should start in early October. I'll do what I can to speed up the reports, but for now have no idea how fast these people will move.
     "At the risk of sounding like a broken record, I have to say again that 99% of the officers' allegations are outright lies, and you can confidently treat them as such. Try to get Lauer's take on as many of those statements as possible. Sometimes that is as simple as the timing involved - for example, Wendy did not start screaming until the officers started hitting me. ..."

     Phillips, September 9th, 2000:
     "The report from the medical witness saying that the actions which are the subject of the law suit were caused the injury and that it is permanent is the minimum that we need to stay in court. Any less and we will be dismissed on a motion.
     "The reason that we got more time was so the doctor could make this determination and give us his report.
     "The drop deadline is November 20th. It is also necessary to purchase a copy of your deposition which was taken last time you were here and it would be prudent to take the depositions of the police officers. We are talking about spending $10,000 to do this. Figure $1,000 per deposition any less will cover the expenses to get Lauer's Deposition.
     "If we are going to be behind the power curve on any of these then it may be the best course of action to see if this can be settled. Please give me your input and authorization on this as soon as possible time goes by very quickly."

     This letter stunned me. I spent hours just trying to understand the first sentence, and finally decided that perhaps Mr. Phillips'  secretary simply left out the word 'by.'  " ...the actions which are the subject of the law suit were caused (by) the injury ..." could seem to make sense, although the injury didn't really cause any actions. I had come to expect strange sentences from Phillips, and I believed that some sort of secretary was doing the typing for him, but nonetheless he was signing his name on letters like this as if they clearly communicated his thoughts. The implications were clear, though - without medical proof of injury we would be dismissed. Why hadn't Phillips told me this in early 1997, before I got so financially involved?
     I had been watching for police brutality stories in the Honolulu papers, and noticed that in at least one of them the U.S. Civil Rights Program had been involved in assisting the victim. I looked them up at the library and wrote to them explaining my situation briefly and asking if it might be appropriate to file a complaint with their office.
     I also wrote to the Magistrate  Judge who was handling the schedules, motions, and evidence for the case and asked if it was true that without a medical report my case would be dismissed, and if so, how had that come about. I related that I was having problems understanding Mr. Phillips, and asked if the judge could clarify some of his statements, like the first sentence in the September 9 letter.  It took a few weeks to get these letters out, and by then I had cooled off enough to reply to Phillips.

     Arney, September 30, 2000:
     "Did you receive the $1700 I sent you for S. Lauer's deposition? This was signed for by somebody named Molina on Sept. 11. I am prepared to send you another $800 - $1000 per month, but want to be sure that it is reaching you. Let me know what the priorities are and I will cover them in that order.
     "I have to admit that I don't understand why I have to pay for all these depositions, in particular mine. Can we charge the City $1000 for a copy of Lauer's deposition, and offset some of this expense?
     "Under no circumstances will I drop charges against Lopes, Aina, Wingo, and Akagi. I will consider a settlement from the City along these lines:  Lauer's testimony in the 1996 trial will be acknowledged. The Police Commission will review their "investigation", reverse their ruling, and the officers will be disciplined. Since Wingo has fled the scene, this will go on his H.P.D. file, and notice of his censure published in an appropriate (law enforcement) national bulletin. Or, the City can forward the information to his current employer. I suppose the City will cry about invasion of privacy - in this case we can accept just the censure permanently in his file.
     "With Lauer's existent testimony we have a case for filing false charges, conspiracy, and perjury. These are crimes. Considering that H.P.D. considers suspension with pay to be discipline (which in the real world is called a paid vacation), the defendants should consider themselves lucky that they are not in criminal court.
     "If the Police Commission had done their job in 1996, we would not be where we are today - they too have a share of responsibility. If they find themselves big enough to admit that, I will accept a settlement. Even though I am reluctant to stick the Hawaii taxpayers with the bill for the City's actions, I guess that's the way things are set up. Go for as much as you can get."

     Phillips, October 9th, 2000:
     "Responding to your letter of September 30 the letter with the $1700 check was received. On the costs we pay for copies of the deposition that they have taken. This is yours. We pay for the costs of the original of deposition that we want of their witnesses. This will be all of the defendants. We need to know what they are going to say and we need to have this before we get to Steve Lauer.
     .....
     "From your comments I am not clear if you want to settle or direct that we prepare for trial. If settlement is an option I need to get a range of dollar amounts. This in my experience should be in the $15,000 to $25,000 range. If we don't have any medical expert to say that there is injury connected to the incident we should look for settlement seriously.
     "October 20 is the deadline for amending the complaint and I am going to file amended complaint which puts forward false arrest, conspiracy, assault and battery causes of action. If you will give me a fax number I will send you the final copy. I would like to get your signature on this amended complaint and will send it to you within the next week."

    Arney, October 15, 2000 (via fax):
     "Yes, you may consider settlement as an option, but I think it's too early to sell short. The neurological tests are in progress - I won't know until October 24 how conclusive they will be.

     "I thought that false arrest was already included in our original complaint under Cause of Action  #2 - False Imprisonment,  #3 - Unlawful Seizure, and  #4 - Initiation and Pursuit of Prosecution Without Probable Cause.  Assault and Battery is  #6, and Conspiracy to Violate Civil Rights is  #8. The only word I don't see is perjury. If you think it's necessary to amend the complaint, you might try to work that in.
     "What I was referring to in my September 30 letter was Cause  #5 - Supervisory Liability of  .. City of Honolulu, Honolulu Police Department, etc. ..  The Police Commission evaded that liability when they ignored Steven Lauer's testimony. If there is a way that they can acknowledge that testimony and revue their "investigation", I am willing to accept whatever discipline they choose for the officers, and accept a settlement in terms of an apology to me. In this case, #25,000 sounds fair to me. If they absolutely refuse to acknowledge Lauer, that amounts to a refusal to discipline, and I can't go along with that. I suppose that I just don't understand the settlement process, but could you please ask the city attorney if anyone there has ever confronted Lauer's sworn testimony?

     Arney, October 25, 2000:
     "I regret to inform you that the neurological tests - an MRI and EEG - did not show conclusive  evidence of damage inflicted in my 1996 beating."

     Phillips, October 30th, 2000:
     "Responding to your letter of  October 15th ... there was a recent settlement for a person who was beaten in jail. He had broken ribs and punctured internal organs required extensive hospitalization ongoing medical care and received permanent injuries. This case settled for less than $350,000. In that case the medical expenses were probably in excess of $100,000. Any settlement in your case would be in the $20 to $30,000 range. If it were tried without any more medical than we have now that is probably the verdict range also.
     "If there is no medical report which ties in present injuries and permanent condition to the arrest and beating then we will not be able to argue that those items of damage. Usually the other item of damage is the cost to defend the criminal matter. However in your case there was no damage here to you since you used the public defender.
     "Without medical damages or loss of earnings or cost of defense expenses the jury can only go on their sense of outrage and remember that they tend to want to find in favor on the police because they do not want think that the police are engaging in this kind of conduct. ... They want to believe that the cops are doing a good job and that there must be some reason for them to do what they did.
     "All of your losses things that you can't do now must be tied into the arrest and beating as we have discussed in terms of causation - the arrest and beating caused the condition - and there is professional testimony to tie this in.  (note : which artist has a "professional"  watching his/her studio and practice time ??  I suspect that this is a U.S. standard, not ATP's obsession)
     "Work up a list of your expenses related to the incident , medical care, prescriptions, doctors visits or tests etc and lets go over it. Call me and lets set up a telephone call time for a conference."

     Arney, November 7, 2000:
     "The bill for my emergency room visit at Kaiser the night of the incident was $400.  Dr. Ginandes charged me a total of $3203.20 .  So far, those are my expenses.  I'm sure that there will be some pretty hefty co-payments for these tests I'm going through now, but the bill hasn't come in yet. As you suggested earlier, there may be a post traumatic stress syndrome, and that will only be caused by the arrest and beating. Unfortunately, that diagnosis hasn't come in yet, either.
     "As I've stated several times, I absolutely will not drop charges against the officers, unless the Police Commission acknowledges Lauer's 1996 testimony and the officers are disciplined. If you are looking to settle, that is my price. I will not accept a settlement that allows the City to evade it's responsibility. If you haven't done it already, please confront the City attorney with Lauer's testimony.
     "In your letter dated  9/09/'00  you said that "The report from the medical witness ... is the minimum that we need to stay in court. Any less and we will dismissed on a motion."  Not may be ... will. It is looking more and more likely that we will not get such a report. I did not undertake this case to get money, I did it in the pursuit of justice. If that justice is not to be forthcoming, I would prefer to lose all that I have invested in this so far (about $10,000), rather than accept a dishonorable settlement.  If it will be dismissed, so be it. "

     Arney, December 20, 2000:
     "I seem to have gone full circle with the medical situation here. The Brain Injury Recovery Program seemed like the place to be, but their system required that I start with the neurologist. He insisted that I have H.M.O. coverage, and as you know, the City took months to process that. I eventually took the required tests and was referred back to the Brain Injury program, and it turns out that the H.M.O. won't cover that. If I had spent the time and money on an independent psychiatrist I probably could have come up with a good diagnosis and letter, but that seems a moot point if our deadline was November 20.
     "I contacted the Civil Rights Program, regarding criminal charges against the officers vis a vis the success or failure of our Civil case. They told me that Criminal / Civil cases are independent of and have no bearing on each other. This frees me up tremendously in terms of seeking justice through the Civil Court. As I have related many times, my concern throughout this case has been that the officers be disciplined. If I had known in the beginning that Civil Court is not the proper venue for that, I would have gone straight to the Civil Rights Program, and not initiated Civil proceedings at all. I apologize for my ignorance, and for my strident demands for justice and discipline.
     "This doesn't mean that I want to give up on our case - whatever remains of it - just that my expectations have changed. Could you please advise me as to where we stand on the following topics .. ?
     "I would still like to believe that the Police Commission is at least trying to do their job honorably. This means that they should acknowledge the 1996 trial testimony of S. Lauer.  I don't expect that they will discipline the officers, so I won't insist on that as a condition for settlement, but I do want them presented with Lauer's testimony, and a written statement from them acknowledging it. Am I being unrealistic about this?  Is it bureaucratically impossible?  I mean this as a settlement with the City only. I still cannot see dropping charges against the officers.
     " Even without proof of medical damage, don't we have a good case for excessive force, false arrest, perjury, and conspiracy?  Doesn't the Court award punitive damages for these?
     "I have believed that the officers' sworn statements in their complaints the night of the incident, in Court, and to the Police Commission are all admissible as evidence in Court. Am I wrong about this?  Does not Lauer's testimony refute theirs, not only that I did not push any officer, but that I was not shouting at the officers, did not keep standing up after being sat on the wall, and did not have to be "subdued"?  I don't see how we can't get some mileage out of this.
     "In your Aug. 27 letter you listed a cost of $1300 - $1700 for transportation to Florida and Lauer's deposition. I wasn't sure if that was a range of costs, or the total ($3000), so I sent you the larger amount. If you want to take the officers' depositions first, please use that $1700, and let me know what the balance is, plus whatever it will take to get Lauer's deposition. Just what is the total figure on that?  I hope that we can get the copy of my deposition last, and use available funds for more critical items.
     "Beyond my obvious ignorance of bureaucratic and legal protocol, I am unsure about many things. My objective throughout all of this has been to hold the officers personally responsible for their actions. Even though Civil Court proceedings don't seem to be the best way to effect that, they may be the only handle I have on justice. I don't want to assume that the Civil Rights people are going to be any more effective than the Police Commission was. I would prefer to go down fighting than to take a dive, but don't want to waste my money on a lost cause."

     Phillips, December 27th, 2000:
     "Today I took the deposition of Dru Akagi and Ronald Lopes. On Friday I take the deposition  of Aina. Next week I will travel to Orlando to get Lauer. He is giving us problems turning up and then disappearing. I want to talk to him face to face to impress on him how important it is that he cooperate with us.
     "As soon as the depositions are transcribed  I will email them to you. After these depositions we are in a spot to settle, but my impression is that we will have to go trial. Whatever way it works out it will be the best."

     Arney, January 7, 2001:
     "I'm glad to hear that you are going through with the depositions, and am enclosing $1000 toward expenses.
     "It looks like our letters might have passed each other in transit last week - I would still appreciate your advice about the questions I raised in my Dec. 20 letter, particularly about the likelihood of being dismissed on a motion. ... "

     Phillips, January 15th, 2001:
     "Thank you for the check for the depositions of the police officers. On January 4th. I was in Orlando and after much confusion and investigation I located Steven Lauer at his new employer. He had his phone disconnected and so there was no way to contact him to confirm the deposition. My concern was that he was not going to cooperate and that he would be a unreliable witness. I tracked him to his new employer and then had to come back the next day to make contact. The upshot was that we did not get him to give his deposition but when I finally found him he was apologetic and my feeling is that he will cooperate. I would say that we could take a telephone deposition but I would like to sit with him face to face  to prepare him for the deposition.
     "As you will see in the police officers depositions their position will be that they have had lots of experiences with witnesses that say that they saw different things than really went on.
     "If they maintain this position then we will have to put their credibility to the test of the jury to see who is telling the truth. Really the tough questions are why would you or Steven lie. As you will see this a question I have put to the police officer and they have no good response.
     "If we do have to go to trial then we will have to bring out Steven Lauer and that is another reasons that I would like to spend some time with him personally to get him ready. ... I think the phone was off because he has troubles paying his bills and that is another reasons that we need to use the utmost care in how we deal with him. He has no reason to cooperate with us and if he gets a better job offer, for instance, somewhere else he may disappear again.
     "The discovery deadline is March 23rd so we will have to deal with this issue of his deposition before that date. My best date would be leave leave February 16th deposition on 18th and return on same date."

     Phillips, February 1st 2001:
     "Again I am worried about the ability to get the deposition of Lauer.  I have tried to call him his home is not working and I am not able to contact him at his home.
     "What are your suggestions we have a deadline of March 23rd for his deposition and any other discovery that we are going to do in the case.
     "We can pick a date and have him served with a subpoena to attend but that is not going to contribute to his desire to be cooperative.
     "Let me know when you have an email account and I will email you the police officer depositions."

     Arney, February 8, 2001:
     "It's not likely that I will get e-mail in the near future. For some reason the connection to our house doesn't work - I'd have to go miles out of my way. It would be most time-efficient to fax those depositions to me at (Mail Boxes Etc.).  MBE charges me $1 / page, though. If there are more than 50 pages, express mail would be better.
     "Your earlier letters gave me the impression that Lauer was willing to co-operate and help in any way that he could, just in the sense of being a good citizen and promoting law and order in the U.S.  I can't imagine why he should change, and there should be "something in it for him." Do you suppose that he was threatened at some point.
     "I also had the impression that Plan A  was to video-tape Lauer's deposition so I would not have to fly him to Hawaii and back for the trial. Is that somehow not possible anymore?  I definitely do not want to pay for three Hawaii / Florida round trips and one Colorado / Hawaii trip if  that can be avoided. Plan A  still seems best.
     "Speaking of finances, I am sending you another $1000 to help with expenses, but I am curious about specific expenditures. Has all of the $2500 I sent you in August 1998 been used up?"

     Phillips, February 10th, 2001:
     "Thank you for your quick response. I have again set up the deposition of Lauer for February 24th. I was able to get him at his job. My two letters were unanswered and the home phone is still off, but we did contact him and he seems agreeable to testify. You mentioned a video actually I was thinking that I would not do a video but that we would have someone probably white middle age read his deposition at the trial. I would read the questions that I asked and this other person would read his (Lauer's) answers.
     "There is still the necessity that the City agree to the deposition, but I do not think that they have much choice even it is on Saturday and early in the morning for whoever is going to participate by phone. I will go in a day ahead of time and prepare Lauer.
     "The expense are all tracked and entered as they are incurred. I will update them and then send you a copy.
     "There is still the deposition of Wingo who is now a cop in Washington state that we have to take and that is probably going to mean a visit to the mainland.
     "After that we have got it and are ready to go.”

     Phillips, March 8th, 2001:
     "This a update. Yesterday I returned from the deposition trip to Orlando for Steven Lauer. He makes a good witness and the trip was successful. I want to send you the depositions and best way to do this is to send you the disks and you can print them there. They are enclosed in this letter.
     "I want to take the deposition of the Honolulu Police Commission investigator and subpoena the reports that HPC provides to the County Council each year and the amount of money paid out in police brutality settlements.
     "We still have outstanding bills for the police officers depositions and we need to pay for a copy of yours. The bill for Lauer will be here in ten days.
     "There is a settlement conference with the judge on the 26th of this month and I will need to discuss this with you soon."

     Arney, March 9, 2001:
     "Enclosed is another $1000 toward expenses. I expect that I can keep up the pace of about $1000 per month, but doubt that I can go any faster.
     "What sort of timetable should I set up for a trip to Honolulu for the trial?  Do you want me there several days early for strategy conferences or preparation?  How long might the trial last?  As it is, I am looking at arriving about May 17, and staying for three weeks. Is that realistic? I will have to set up schedules with airlines, my sister (effectively my landlady), and my job ..."
     (At this time we were still expecting a trial date of May 22.)

     Arney, March 19, 2001:
     "This is just a confirmation of my phone message the other night. I received your letter of 3/08/01, in which you said that depositions were enclosed in disks. There were no disks in that envelope.
     "I don't think that I can pay all the expenses by May 22. As I mentioned in an earlier, I can keep up the pace of $1000 / month, but anything beyond that is unlikely. My credit is maxed out as it is. ... "

     Phillips, March 21, 2001:
     "Here the disks ... sorry."

     Phillips, March 30th, 2001  (after the settlement conference on March 26):
     "The City and County have not offered any money. They contend that there is no evidence of injury to substantiate your claim. They say that the ER report does not support the claim of beating to the head. They say that the witness supports them that there was nothing more than being pushed to the ground.
     "The trial is set for July 3rd.  This is a hard date and we should be prepared to go on that date.
     "The City and County seem to miss that even if their is no evidence of injury from a beating that consisted of several hits to the head there is still no way around the  malicious prosecution claims or the conspiracy to violate civil rights claim. We need to get ready to try the case and leave it up to the jury. You make a good witness and I am sure that you will be believed again by this jury as you were by the District Court in the criminal trial.
     "You should probably make plans to be here for three weeks from June 20th on."

   (note : Mr. Phillips and I had had a phone conversation in which he related that the City attorney - Mr. Matsubara - had come up with conflicting court dates, meaning that my case would be overlapping an earlier one of his, meaning that he could not be prepared for both, and therefore the trial date had been re-set (again)  from May 22 to July 23.)

                            Depositions of the Officers

     Arney, April 13, 2001:
     "I've reviewed the depositions you sent. It seems to me that the officers have further eroded their credibility, either through conflicting statements or in comparison with the available evidence.     
     "Again, Lopes and Akagi state that they were sent via dispatch to Nimitz and River, or to the parking lot at that intersection, and that it took some time for them to get there  (Lopes pp. 20, 21, 24  Akagi  pp. 45, 47, 48). As I've mentioned before, Wendy and I were not arguing at that area, but walking  (as fast as I could) along Nimitz. If a 911 call had come in when we were at the Nimitz / River location, by the time the call was processed and the dispatch sent, and Lopes ans Akagi drove around for a few minutes, Wendy and I would have been around the corner and approaching the Dole cannery.

     "I  trust that Lauer confirms that Wendy and I were traveling, not  stationary at River and Nimitz. Again, I challenge the existence of a dispatch. Mr. Matsubara has stated that no evidence exists regarding any dispatch - is it too late to find out how long H.P.D. is supposed to keep such records? Regarding the City's responsibility, why didn't the Police Commission verify the alleged dispatch?  They had ample time. "  
     "Descriptions of the alleged push vary more in the officers' new  version. Akagi admits that he had his back turned (pp 53,54), and Lopes says (pp. 28, 29) that he scolded Akagi later for standing that way. Aina repeats his observation that I was standing in front of Lopes with my hands clenched at my sides, and that there was only one "action," when I allegedly pushed Lopes (pp. 29, 43).  Lopes, in contrast, has us standing "bladed," at an angle  (pp. 28, 38, 39), and says that I actually poked him in the chest (p. 35) before pushing him. The only version I have from Wingo is his initial incident, where he has me standing two feet in front of Lopes, yelling in a loud boisterous manner, with my fists clenched at my sides.
     "Regarding the bladed stance, my latest doctor's measurement has me at five feet four inches. I have rather short arms and legs, and it would be near impossible for me to reach past Lopes' right arm and poke him in the chest. If he had indeed allowed that and then still was surprised when he was pushed, that would have been poor self defense for anyone, let alone a police officer.
     "On page 37, Lopes seems to say that he pushed me in response to having his chest pointed at. I don't think that he means that he pushed me first, but it's interesting that he said that.
     "On page 41 Lopes again states that he pushed me back and I sat on the wall behind me. Then Wingo came in and handcuffed me.
     "You have no doubt noticed that none of the other officers agree with Lopes that I was bladed to him, that my hands were up, that I poked him in the chest (or pointed at it), or that he pushed me backwards. Then, in his version, Lopes has Wingo come in and handcuff me while I was seated on the wall (p. 43). Aina (pp. 43, 44) says that he and Wingo handcuffed me while" (I was) "still standing, then I was taken to the wall and sat down. As I pointed out in the time line I sent you in 1999, there are a few other variations in how the arrest and handcuffing took place.
     "These are the major items that I can pick out at this time, although a few other things caught my eye. In several places the officers stated that I was not injured when taken from this scene. I'm sure that the original photo will show some damage, and hope the City will produce that original. Likewise, Inspector Cluney, during my initial visit to the Police Commission, took pictures of my face ... I don't see them included in the P.C. report.  (underlining  2003)
     "It's interesting that Aina was at the first trial, but the prosecutor declined to call him to testify. Wendy told me that the officers - while waiting outside the courtroom to testify - were laughing and joking about the incident so loudly that the prosecutor had to come out and tell them to shut up. As I recall, the original prosecutor didn't like this case, and had it postponed, and  (?) dumped it on some one else.  She was not happy to be handed a losing case. I don't know if there is anything worthwhile in this, but thought I'd mention it.
     "I see that our deadline for exhibits is approaching, and I hope you don't mind if I make a few suggestions. Can we include the JAMA reports on TBI that I sent you a while back?  They indicate that head trauma is associated with impaired mental performance, even when there is no obvious injury or wound. I believe there is a precedent for this in the tobacco lawsuits, (?) where the plaintiffs did not have to prove every individual case, but were allowed to use smoking vs. health statistics. At any rate, these reports are all in the Sept. 8, 1999 issue of JAMA.
     "Are all of the defendants' prior statements regarding the incident going to be made available? Whether through discovery or as exhibits, I hope we will be allowed to compare what they said in the incident reports, in the first trial, and to the Police Commission.
     "You will find enclosed two pictures of me as I looked at that time, for possible comparison with the stunned and disheveled look I had in the mug photos. One thing that's bothered me is that the officers took off my hair tie and roughed up my hair so that I looked unkempt. As you will recall, even though I had rather long hair at that time, I always kept it tied back neatly. The larger of these pictures was taken right after I had my interview with Inspector Cluney. This was about  1 1/2 days after the incident, and I still looked stunned and confused. I had had absolutely no alcohol (or any other substances) when that picture was taken.
     "Also enclosed are the deposition discs. Next Friday will be my next payday, and I'll enclose another check for $1000 as soon as that's in the bank. ..."

     Phillips, April 13, 2001:
     "Following up on the last letter we have the deposition of Lauer but the City thinks that it helps them. We have to decide if we want to bring him in for the trial. I will contact him and find out if he will come. We will have to pay his expenses but I think that we have to do it if we can. I will get a copy of your deposition and send it to you for your review.
     "A tough question is what do we do about Wendy my feeling is to let her stay out of it. The problem is that the City may find her and bring her in. We can cross that bridge when we get to it unless you want me to try and contact her first.
     "There is still a deposition of Wingo and the City said that they would bring him in at their expense. I have notice the deposition of the doctor at the emergency room at Kaiser and got his records. They do not look to me from my reading of them that there was a complaint about a head injury. Do you remember something different? I am going to try to talk to the doctor before taking his deposition to see if he will be a good witness.

     Arney, April 29, 2001:

     "I can't imagine how Lauer's deposition could help the City, and have to see it to make any comments. I'm sure that he (or anyone) did not see me push any police officer, because that action never occurred. It would probably be better to have him there in person for the trial - the only problem I have with that is the slow pace of my finances, but I'm willing to cover the costs. If you decide to bring him in, I would suggest securing a flight as soon as possible, as airline prices seem to be going only up.
     "Regarding my visit to Kaiser, I did tell the doctor that I had been beaten unconscious, but don't know how visible my wounds were. Wendy was the one who said that my ear was bleeding, but I don't know if that was inside or out, or how the doctor perceived it. They did ask if I wanted x-rays or a brain scan, but I declined because of the expense.
     "The City would be foolish to bring Wendy in, as she's the one person who could confirm that we were walking along Nimitz (not arguing at Nimitz and River), that I did not push anybody, that the officers hit me repeatedly, that I was prone on the ground, and that neither Wingo nor any other officer got my basic information from me (they got my address, place of employment, etc. from Wendy while I was lying on the ground). From our point of view, she might be a bad witness because she is emotional and easily confused, but she was right there, and should be consistent on the points I just mentioned.
     "She has gotten in touch with me occasionally. She has been expecting to testify, and, as you might recall, is tremendously afraid of retaliation if she does so. There are reasons for her having this fear, and I don't know any way around it. I'll see if I can contact her and have her call you.
     "One minor point I recall from the officers' depositions - if the wall I was sitting on is a retaining wall, it has been filled in since the incident. In Sept. 1996 it was free standing, with a drop of about two feet behind it.
     "As you advised on March 30, I have taken July 3 as a firm trial date, and am trying to get a good price for a trip. I'll probably take the best thing available within a week or so."

     Phillips, May 5th, 2001:
     "Today I received an assignment for trial on June 4th on Maui. The trial is complex litigation and I feel that it will take me through the July 2nd date for our trial. I will be asking the court to consider another date this week.
     "Steven Lauer said that he can come out for the trial. He wants to come and have is girl friend finance come with him because they may stay here. What do you want me to tell him about the airfare?"

     Phillips, May 7th, 2001:
     "Please do not contact Wendy. If you have let me know exactly when you did and how. Do you know her address and telephone number. It is best if she stay in the background. Now that you have contacted her we may have to bring her in just so it does not look like we are not trying to hide anything."

     Arney, May 15, 2001: "I received your May 5 letter just a bit too late to change my flight arrangements. I purchased tickets through the internet that will have me in Honolulu from June 23 through July 13. These are unchangeable and non-refundable. If we can't conclude the trial by July 13  I suppose I can take a loss on the return trip and book another one, but of course I'd rather not. Not working for three weeks is already a strain on my budget.
     "I have been expecting to cover Lauer's flight and hotel expenses (for 5 to 7 days) as long as he doesn't stay at the Hilton Penthouse. Reasonable rates can be found at the Pagoda or the Big Surf, and airoutlet.com can possibly find a good price to and from Hawaii  (or segments of that trip ... my neice recently got a cheaper round trip from North Carolina to L.A. than I can get from Denver).  Of course Lauer can bring his girlfriend, as long as I don't have to pay for her.
     "Wendy called me on my friend's phone the last night of my November trip to Honolulu in 1999.  We met briefly, she said she was still expecting to testify, and I told her we weren't planning to use her. She has called me a few times here in Colorado and we pretty much run over the same conversation. I believe she still has the same pager # (***-****) that she has had for years."

     Phillips, May 20, 2001:
     "Enclosed is the order resetting the trial date. I will be forwarding the same information on the new date to Steve Lauer.
     "I will not call Wendy and hope that she does not contact us. Please screen your calls to keep her from contacting you. My feeling is that her testimony will only weaken our case because of her statements about the tow trucks. It will effect your credibility. I would rather go with Steven Lauer. We may have to use her especially if they bring her in but she is a wild card and it is hard to tell how the jury will react to her if she has a bad day and the pressure of testifying in the courtroom with the judge etc. will increase the pressure on her."

     The new trial date was September 11, 2001. I was unable to book a new flight date, so took the trip to Honolulu in June anyway, even though it meant missing three weeks of work.
     I couldn't understand - and still don't understand - just what Mr. Phillips meant about Wendy's statements about the tow trucks. She couldn't remember the name of the company they were from, and I recall that she and Mr. Mrkva from the Police Commission went around and about the subject at least once. My impression during the incident had been that I was surrounded by more than four officers, and that they were blocking the scene of their crime from public view, but my glasses were off, and I was getting beaten, so I didn't have the opportunity to see much of anything besides Ronald Lopes.
     What everybody seems to have missed was that the incident took place on the edge of the Aala Parking and Towing Company, where tow trucks and cops were waiting in the dark. One of my initial impressions was that Police vehicles had emerged from the Aala Parking lot. Later, as I sat on the wall, it seemed like Lopes was directing somebody to park where they would block the public’s view. So Wendy was probably right that it was tow trucks, but she was discredited.   It’s pretty obvious that tow trucks were stationed at the scene, but none of the officers or Commissioners even mentioned Aala Parkin

     Arney, August 4, 2001:

     "I am again searching for a reasonable fare to Honolulu, but have put off purchasing a ticket in hopes that prices might go down as summer ends. I'm projecting to arrive there Sept. 7 or 8, which should give us a few days for pre-trial conferencing.
     "I hope that Sept. 11 will be a more reliable trial date than the others have been. Does the Court have any standards regarding re-scheduling, or can that be done right up the last minute? I sure don't want to arrive in Honolulu and find out that we have been postponed again. In any event, please let me know as soon as possible if that looks likely. Our letters moved too slowly the last time around - don't hesitate to call on the phone if anything looks imminent.
     "Should I bring anything, such as articles I wrote in Sunbums, or photos like those I sent you earlier? Notes and comments on the various depositions? In fact, could you send me a copy of Lauer's deposition, so I can review it ahead of time?"

     Phillips, August 8th, 2001:
     "We have a firm trial setting for November 27th, 2001. This will be the trial date I will be confirming with Steven Lauer that he can be here. I want to bring him in several days early to work with him a little. The witnesses will be you, him and the emergency room doctor.
     "We should pick the jury and complete our case in three days and the government should take about the same time."

     Phillips, October 16, 2001: "We are moving ahead for the November 27 trial date. The final pretrial is set for October 25. Steven Lauer has gotten his prepaid ticket. What is your travel schedule? If you could be here a week in advance that would be good.
     "I have not received any return correspondence and please drop me a line with your telephone number. Also tell me if there has been any contact with Wendy. She is listed as a witness for the government."

     Arney, October 21, 2001:
     "I am scheduled to arrive in Honolulu the evening of November 20, and expect that I will be available for the entire week before the trial. I'm not sure yet where I'll be staying, but will of course let you know as soon as I do.
     "It would be helpful if you could get me a copy of Lauer's deposition, as I'm sure that he should erode the officers' credibility, particularly with respect to the timing and positions of myself, Wendy, and the officers. I am more certain than ever that there was no dispatch, the officers were not roaming around looking for Wendy and me, and that they were essentially in or near that parking lot. According to W. Matsubara, no records of any dispatch were known to exist as of November 10, 1999.
     "Please do your best to avoid any further delays of this trial. Beyond the fact that I purchased a ticket in vain the last time around, and that I have cursed these officers and their lies every waking hour since the incident (this is going beyond 30,000 hours, and has been a severe drain on my mental health), there is the ongoing uncertainty about air travel in the country. I BITTERLY object to any more continuances."

     Arney, October 23, 2001:
     "As luck would have it, I was returning from mailing mailing you my travel plans, and there was your letter of October 16. ...
     "My phone number is the same as it's been for the last three years, and is included above. ...
     "The last time I spoke with Wendy - about a year ago - she said that we cannot lose, because we have her (as a witness). Despite her fears of H.P.D. retaliation, she expected (and seemed to want) to testify. I told her several times that we would not call her, as I could not provide protection. I can't believe that she has turned against me for no reason - if she is going to testify for the City, it may be that she has beguiled them as a way to get to the witness stand. ... All in all, she will be a bad witness for the City ... She may be a wild card, but she is our wild card. Have no fear."

     Phillips, October 29, 2001:
     "There was a trial against the City and County over the shooting death of someone during an arrest. The case was settled and we took there spot on the trial calendar. The settlement was pending the approval of the City and County council's vote approving the figure. The council voted against the settlement figure and the case went back on the trial calendar. We have had our trial pushed from our trial date.
     "I am awaiting a new date. I have asked for a new date in the last half of January 2002 and we will see this week if we can get that date.
     "Everyone was taken by surprise by the failure of the settlement and having to go to trial on the case. But we are behind this case. I am concerned about the contact with Wendy and would like for you to give me another letter about this spelling out the contacts in detail - the dates, duration, whether letter or phone and the subject of the communications."

     Arney, November 12, 2001 :

     "Since I left Hawaii in the spring of 1998, all of my "contact" with Wendy has been at her discretion and convenience, and sorry to say, I didn't log any of the dates or durations. Even though I wanted to stay on good terms with her, she was quite offended that I had left, and didn't acknowledge letters that I sent through 1998 (one or two letters, one of which was returned unopened).
     "Two days after my deposition with the City (Nov. 25, 1999) she contacted me on my friend's cell phone, and we met briefly (20-30 minutes) at a Liliha snack shop. Her conversation was disjointed - she was afraid to speak aloud, and wanted to write questions and answers on a napkin - so I'm not sure if I pieced her statements together correctly. Apparently she had moved from her Aiea house, leaving it for her son to live in. A detective from H.P.D. tracked her to her new residence and insisted that she sign an agreement to not testify. He also wanted to find out where I was. I told her that the City (Mr. Matsubara) already knew what my address was, and that if anyone else wanted it, she had my full permission to give it to them (so she did not have to feel that she had to protect me, and could not be threatened for doing so). I also told her that we were not planning to call her to testify anyhow, so she should not worry about that.
     " ... I'm sorry if I didn't mention this before - I wasn't sure if I understood her correctly (and still am not sure), or if she was serious. I almost forgot about this incident.
     "I sent her $450 around Christmas and New Years Day, to repay the money she had given Kaiser for my E.R. visit the night of the incident, and she wrote to thank me for that in April 2000, adding that she was still being followed. Since then she has called on the phone a few times, about every six months, stating, as I have related, that she still expects to testify for us. She has never said anything to the contrary.
     .....
     "My travel agent says that the ticket I purchased for this month can be changed (for a fee) for up to one year. I look forward to another "firm" court date."

     Arney, December 26, 2001:
     "Has the court made any progress toward getting us a new trial date? In your letter of October 29 you said that you would try for something in the second half of January, which is obviously drawing near. I would like to arrive a week before the trial, as per your earlier suggestions, and I'll probably need at least a week notice before I fly, just to ensure travel arrangements and time off from work. My sister is not here at this time, so I will also have to make double payments for utilities, and arrange for care for her pets and plants. As long as the date has been postponed already, I hope that the new one will give me enough time to take care of these things. Please let me know as soon as you find out.
     "Has the City confirmed or denied that they intend to use Wendy as their witness? If I read the Rule 16 Scheduling Order correctly, they are supposed to describe concisely the substance of the testimony to be given three weeks before the trial. Hopefully this will give you time to send me a copy of that description, so we can be prepared to deal with it. The same applies to Lauer's deposition - especially as the City seems to think that it helps their case - it would be prudent for me to examine it in time to make suggestions. Time permitting, please send whatever is available from both Wendy and Lauer."

     Phillips, February 12th, 2002:
     "We are set for trial on March 27th, 2002. There may be matters which I will need to discuss with you between now and trial. Please call me with the best telephone number.. Steven Lauer came to Hawaii before Christmas but his phone is not now working. We are trying to contact him through his contacts in Florida."

     Once again, our letters passed each other in transit.  ...

     Arney, February 15, 2002:
     "Has the Court made any progress toward getting us a new trial date? If you have sent me anything since October 29, I haven't received it. My concerns are the same as before - that I have about three weeks notice so I can arrange time off from work, confirm travel plans, and make sure that my sister's place will be taken care of. Of course I hope that the court can come up with a truly firm date. You can take it as a given that I firmly, permanently, and bitterly object to any further delays.
     "Has the City confirmed whether or not they intend to call Wendy as a witness? If so, have they come up with a description of the substance of her testimony?
     "Is there a problem with me getting a copy of Lauer's deposition? This is at least the third time I am inquiring about this..."
      This was actually the 5th time I asked for Lauer's deposition. 




     February 25, 2002:
     When I arrived at home from work, there was a message from Phillips on the phone answering service: Lauer was missing, but the City had made a settlement offer of $10,000. Phillips wanted me to contact him, but by the time I returned his call, it was too late.
     I contacted Phillips the next day. He confirmed that that the City had offered a $10,000 settlement, and that Lauer was still missing. If we decided to go to trial at this point, the costs - especially to find Lauer again - would go up, probably to the extent of thousands of dollars. Phillips suggested that I come up with a summary of my costs to date regarding this case, and call him back the next day. Meanwhile, he would suggest a $15,000 settlement to the City.
     I tallied my expenses - not including the $1500 retainer - and related to Mr. Phillips that so far I had invested $17,535 in my pursuit of justice. This was on Wednesday, February 27, 2002.

     On Thursday, 2/28, Phillips called and related that the City had raised their offer to $11,000. If I agreed to this, he would set the wheels in motion, and, pending approval by the City council on March 21, we could complete the process shortly after that.

     Considering that I was paying Phillips for his services, and the taxpayers of Hawaii were "contributing" their finances to H.P.D., the Police Commission, and the City Attorney's Office,  this struck me as the fishiest deal offered by employees to their employers that I had encountered in my life.

     As of March 30, 2001,  the City had offered nothing, in terms of a settlement. A few months later, Phillips started relating to me that the City was going to call Wendy as a witness. He seemed worried about that, and requested a summary of our contacts. I wasn't worried about the contacts, as I related to Mr. Phillips, because Wendy was the closest eyewitness I had. Furthermore, Wendy had called me on February 15, 2001, and said that she was moving to the mainland. And now Lauer had disappeared again. Both of my witnesses had vanished, and all of a sudden the City - which as of April 13, 2001, thought that Lauer's deposition in particular aided their case - was making a settlement offer. If I wanted to locate Lauer, I could expect to fork out more dollars. In other words, I was being offered the bum's rush, courtesy of the City & County of Honolulu.

     I balanced the situation in my mind.  The U.S. Civil Court obviously did not have any standards regarding continuances; they would keep on extending court dates as long as a lawyer could exhale a request for continuance. My most reliable witness - Lauer - allegedly kept disappearing, although I had no evidence for that, except for the allegations of Phillips.  Wendy, of whom Phillips seemed deathly afraid, had also disappeared.
     It seemed like I had a choice of shelling out thousands of dollars for the rest of my life, or accepting this fishy settlement offer from the City. It also seemed like the guilty officers would not be brought to justice whether I took the settlement, or proceeded to trial and won the case ... the citizens / taxpayers of Hawaii would foot the bill, and Lopes, Aina, Wingo, and Akagi would skip home free, picking up their paychecks on the way.
     Nonetheless, I grilled Phillips as much as I could regarding the circumstances we were in, and the implications of accepting a settlement.  Yes, Steve Lauer was missing, yet again. Would accepting a settlement affect any my fourth amendment (free speech) rights? In other words, would I still be allowed to speak and write about this case, without violating any U.S. laws? Phillips said: Yes, there are some rights that I couldn't give away even if I agreed to give them away.
     All in all, it seemed like the responsible agencies in Hawaii and the United States weren't interested in bringing domestic terrorists to justice. The Honolulu Police Commission disregarded my witnesses, conducted a flimsy investigation, and sided with the criminal officers as a matter of daily business. Mr. Phillips was interested in a high cash commission. The F.B.I. conducted a weaker investigation than the Honolulu Police Commission, and concluded that they could see no prosecutable offense. If I wanted to continue to throw money into the sewer, the U.S. justice system was perfectly willing to take it.
     Although I was extremely  reluctant  to let Lopes, Aina, Wingo, and Akagi "do whatever they wanted to, and I couldn't do anything about it," it was obvious that the justice departments of Hawaii and the United States, and the U.S. Civil Court, were light years away from achieving justice. I was throwing good money after bad. I asked Phillips again if  a settlement would bar me in any way from speaking or writing about the incident and it's aftermath. This time he said no, I could not give away those rights.

     The most heavy-hearted agreement I have entered into in my life was the settlement I signed with the City and County of Honolulu, releasing them from the consequences of the criminal acts of their employees - Ronald Lopes, Wallace Aina, David Wingo, and Dru Akagi. It is if I accepted dirty money to join in their conspiracy.

     This entire process has been to the shame of Hawaii, the United States, and myself. It is my perception that Lopes, Aina, Wingo, and Akagi are incapable of feeling shame, so they are excluded from that statement.

     Phillips, May 1st, 2002:
     "Enclosed is the release for your signature and return to me by express mail. The check is waiting at the Corporation Counsels office. When I have gotten the release back I will trade for the draft. It will be in your name and my name I will endorse the check and deposit it in the trust account. When the check has cleared we can make the disbursements."

     Phillips, May 28th, 2002:
     "We are in receipt of all the papers and the draft has been received and deposited.
     "Enclosed please find your check for $7337.00 which represents 66% of the settlement.
     "If there is ever any need for our services please let us know.
     "This will conclude the representation of you on this matter. Let me know if you have any questions."

     Arney, June 5, 2002:
     "I write to confirm that I received your check, to thank you for all that you have done, and to make one last request, if I may.
     "Accepting this settlement is a bitter defeat for me. Once Lauer disappeared, there seemed to be no option. As you know, I actually lose about $10,000 as we exit the Civil Court process, and the money is the least of my losses. I used to be a True Believer in the American story of equal justice for all. Now I have absolutely no trust in the police, the police commission, or any of the government officials that they hide behind. Lopes, Aina, Wingo, and Akagi strut around like heroes instead of being treated like the criminals they are, and I have had to wade through years of stress and confusion.
     "For my own peace of mind (?) and my records could please send me copies (or originals, if you don't want them) of whatever it is I have paid for? Frank Saunders comes to mind - did he actually do anything, or was his fee just a retainer? What about the research done on harassment cases? Could I get a copy of  the 1996 court proceedings, and one of Lauer's deposition, please.
     "I am in touch with Dr. Ginandes, and can ask him for his records myself, but regarding all the other records, they are in Hawaii and I am here in Colorado. I will gladly cover any expense incurred in making and sending any copies, of course.
     "I imagine that this has been as fruitless for you as it has for me. I deeply appreciate and thank you for all that you have done. Best wishes for the future."
                                                           

     Phillips, June 10, 2002:
     "Dear Al;
     "We will put all of your papers into several banker boxes and send them to you fourth class mail.
     "You should be relieved that it is over and realize that it is past history. You are in a good situation in Colorado and you have well started a new life there, focus your attention on the present and let theses bygones be bygones.
     “Let me know if you have any questions.
     “Kind Regards,
     “Arnold T. Phillips III

     Arney, 1 1/4 years later:
     October 31, 2003

     The banker boxes have not arrived yet.

     Sorry, Arnold

     Trick or treat, L.A.W.A.   

     This is going online.

                                                 
           Yours Truly

           Al Arney