Saturday, October 4, 2008

KPD Blue- Chapter 9 : Officer Nelson Gabriel

KPD Blue

By Anthony Sommer

Chapter 9 : Officer Nelson Gabriel

It’s impossible to tell the story of the lengthy campaign by Mayor Maryanne Kusaka and the middle management in KPD to oust Chief George Freitas without first understanding the strange case of Officer Nelson Gabriel.

Gabriel was a KPD officer. In 1999, he was indicted on 22 felony charges stemming from the alleged sexual assault of his teenage step-daughter between May 1998 and April 1999.

He was not tried until two years later in October 2001. The right to a speedy trial is guaranteed by the Sixth Amendment to the U.S. Constitution and Rule 48 of the Hawaii criminal court procedures but it often appears that no one on Kauai ever actually has read the U.S. Constitution.

The verdict (issued by Circuit Judge George Masuoka— Gabriel had waived his right to a jury trial) was not rendered until January 2002. Gabriel was acquitted three months after his trial ended and almost three years after he was indicted.

Masuoka said he delayed his ruling because he didn’t want to influence the outcome of the investigation into charges against Freitas that was in progress over at the Kauai Police Commission. The accusations against Freitas, which ultimately proved to be a farce, directly involved the Nelson Gabriel trial.

But, in the end, Freitas, who fought to keep his department from violating Gabriel’s rights, ultimately lost his job as a direct result of the verdict in Gabriel’s trial.

The investigating officer in the allegations against Gabriel was Lt. Alvin Seto. It was Seto and his supervisor, Inspector Melvin Morris, who filed complaints against Freitas.

Seto and Morris were among the KPD middle management digging in its heels every time Freitas moved to modernize KPD.

When Gabriel was indicted and while he was awaiting trial, he was taken off the road and given a desk job in the dispatcher’s office located in a rented office almost a mile away from police headquarters.

While he was working at the dispatch office, one of the women dispatchers, annoyed by too much attention from Gabriel, asked for a transfer to a different shift.

At first, she did not file a complaint against Gabriel. But Lt. Seto pressured her until she did.

Seto later said in an interview that he had “run into the dispatcher’s mother in a bookstore and advised her that her daughter could file a formal complaint.”

Seto insisted he did nothing beyond that to convince the dispatcher to file a complaint against Gabriel.

But that isn’t the way the dispatcher remembered it when she filed her lawsuit against Seto and the County of Kauai.

She said her supervisor went to Seto—who worked in the Investigations Division and had no role or responsibility in dispatcher operations—and told Seto about her request for a shift change.

The supervisor knew Seto was the investigating officer in the molestation case against Gabriel.

“Lt. Seto, in turn, contacted my mother and began pressuring her to pressure me to file criminal charges against Mr. Gabriel,” the dispatcher said in her civil complaint. “Seto was not even supposed to have known about my administrative complaint,” she added.

Seto sent two detectives to the dispatcher’s father’s house (her father was a retired KPD officer and a friend of Seto’s) to obtain a formal complaint from her. They also set up a recorded conversation between the dispatcher and Gabriel in hopes Gabriel would say something incriminating.

According to court documents, Gabriel made some admissions that were taped but exactly what he said never was specified in the record and they fell far short of a confession that could be used in court.

The dispatcher said in her lawsuit she was annoyed by Gabriel’s attentions.

But she was terrified by Seto’s threats.

“At this point, I was afraid to resist the detectives. I was afraid that I would be fired or otherwise disciplined if I did not now fully yield to the criminal investigation,” the dispatcher wrote.

She also said Seto had urged her to lie to the detectives, but she refused to do so.

“Lt. Seto urged me to tell the detectives that Nelson Gabriel had kissed me on my neck at work. He stated: ‘Make sure you tell them about Gabriel kissing your neck.’

“The problem was that Nelson Gabriel had never kissed my neck, and I had never stated that he had done so,” she said.

“Being pressured to lie in a criminal case by a powerful uniformed man was a terrifying proposition. I did not lie in my statement to the detectives; however, I became sickened with anxiety,” she wrote.

The harassment charges involving the dispatcher were misdemeanors and they weren’t immediately pursued. They just remained in Seto’s back pocket.

Gabriel’s trial on the charges of sexually assaulting his step-daughter was rapidly approaching.

Seto was aware that Gabriel’s wife planned to testify on her husband’s behalf, telling the court her daughter had a long history of being a chronic liar and that she had frequently falsely accused others with whom she became angry of molesting her.

According to court documents in a series of lawsuits filed later, Seto planned to try to force Gabriel’s wife to testify against her husband in the molestation case. If Gabriel’s wife did not cooperate and testify for the prosecution instead of her husband, Seto planned to play her the police-taped conversation between the dispatcher and Gabriel.

Seto believed that tape would make Mrs. Gabriel angry at her husband and she would testify against him in his trial.

Seto went to the County Prosecutor’s Office and asked the attorney handling Gabriel’s case to send a request to the KPD asking that a detective again interview Mrs. Gabriel who, through her lawyer, already had refused to talk to them. Seto intended to be the detective conducting the interview of Mrs. Gabriel.

All interdepartmental requests cross the police chief’s desk and when Freitas saw the request from the Prosecutor’s Office, he refused to forward it to Seto.

“A sexual harassment complaint is, by law, totally confidential,” Freitas later said.

“If I allowed Seto to try to use a confidential harassment complaint in an attempt to coerce Mrs. Gabriel to change her testimony, the whole effort would be blatantly illegal. I wasn’t about to allow that.”

Freitas cleared his decision to block Seto’s use of the tape with the County Attorney’s Office.

The same County Attorney’s Office later advised the mayor and Kauai Police Commission to punish Freitas for exactly the action they told him was legal.

Unable to use the tape to sway Mrs. Gabriel, Seto went shopping for a way to retaliate against Chief Freitas.

Seto first attempted to convince the County Prosecutor’s Office to charge the police chief with interfering with a police investigation. The prosecutors told him there was no basis for such a charge.

Seto and his boss Morris then went to Mayor Maryanne Kusaka and the Kauai Police Commission and filed a list of charges against Freitas.

The most serious charge was “hindering prosecution” of Gabriel, the same charge the lawyers at the prosecutor’s office refused to pursue.

Seto found an attentive audience. The mayor had never supported Freitas. The police commissioners who hired him were long gone, replaced now by Kusaka’s appointees.

Meanwhile, the trial of Nelson Gabriel began and a parade of witnesses, including her teachers, testified his step-daughter was a chronic liar. Over a period of years she had accused a number of men with whom she was angry, including her grandfather, of molesting her.

She also lied about a burglary that never took place in an attempt to cover up some damage she had caused at home.

Seto’s attempt to blackmail Mrs. Gabriel to testify against her husband blew up in Seto’s face.

Michael Green, Gabriel’s Honolulu-based attorney, told Seto that if he took the stand he would be cross-examined about his efforts to coerce a witness: Mrs. Gabriel.

Seto decided not to testify. He was not seen again in the courtroom.

It is almost unheard of for an investigating officer to not testify about the evidence he obtained in a criminal case. No one explained his decision—made just minutes before he was scheduled to take the stand—but no one had to. Everyone on the island knew the true story.

Just as interesting was what was going on out in the audience.

Every day of the trial, Elizabeth Goynes, who was both the police chief’s fiancé and a retired Richmond (Calif.) Police Department detective, was in the audience, and she purposely sat behind Gabriel’s defense table as sign of support.

Also every day, a group of KPD plain clothes detectives appeared in the audience. They all hugged Goynes and sat with her behind Gabriel.

“This whole case is absolute bullshit,” one of the detectives said outside the courtroom. “I don’t know what that moron (Seto) is doing because those charges against Gabriel never should have been filed.”

Gabriel was acquitted of the 22 felony counts of molesting his step-daughter.

A misdemeanor harassment charge was filed against Gabriel in the case involving the dispatcher. He was given probation and put back on the road as a KPD patrol officer. Later, Seto retired from KPD and signed on as a supervisor with the civilian security company contracted to guard the U.S. Navy Pacific Missile Range on Kauai. Ultimately, the dispatcher settled with Kauai County for $100,000—$86,000 in damages, $11,500 for future psychological counseling and $3,000 to settle a worker’s compensation claim.

The Council, as usual, approved the settlement in an executive session, even though it is forbidden by the Open Meeting Law from voting on expenditure of public funds behind closed doors.

Kauai County also didn’t announce the settlement until a year after the Council approved it. Under law (except on Kauai), amounts paid out by the government to settle litigation are public record as soon as the legislative body approves them.

The county also refused to reveal how much it paid the private attorney who ultimately lost the case for them (and the taxpayers who paid both the lawyer and the settlement). Those expenditures are supposed to be public record.

But, not a single newspaper or TV or radio station filed any complaints about violations of open meetings and public records laws. And, at the next election, Kauai voters returned to office all Council incumbents seeking another term.

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