A Hilo attorney has filed a federal lawsuit against Hawaii County, Mayor Mitch Roth, county Prosecutor Kelden Waltjen and Deputy Prosecutors Kate Perazich and Sylvia Wan.
Pueo Kai McGuire is seeking monetary damages, claiming malicious prosecution, fabrication of evidence and abuse of process, defamation of character, and intentional and negligent infliction of emotional distress.
The civil suit was filed Monday in U.S. District Court in Honolulu by McGuire, who is in private general practice as Big Island Lawyer LLC. McGuire filed the lawsuit pro se, meaning he is representing himself in court.
McGuire, then a 31-year-old deputy public defender, was charged by complaint on Jan. 22, 2020, and indicted by a Hilo grand jury on Jan. 29, 2020, with first-, third- and fourth-degree sexual assault for what prosecutors alleged was an acquaintance rape of a 27-year-old woman on Jan. 19, 2020, at McGuire’s Hilo home.
The charges were dismissed with prejudice — meaning they could not be refiled — on July 16, 2021, by Third Circuit Chief Judge Robert Kim. The dismissal was in response to a motion filed by Perazich on July 13, 2021. According to the motion, the request the charges be dismissed was made “in the interests of justice.”
Among the allegations in the suit are that the complainant — the daughter of a police sergeant/detective — had consensual sex with McGuire, but lied to police and the grand jury both about the nature of the sex and about having had sex with McGuire the previous night, as well.
The complaint alleges a police detective interviewed the alleged victim three times and didn’t find her claims credible, but Wan advised the detective to press the sexual assault charges.
According to the suit, Wan did so “to embarrass and defame” McGuire, “shame” the Office of the Public Defender, and benefit the political campaigns of Roth, then the county prosecutor and candidate for mayor, and Waltjen, then a deputy prosecutor seeking election as prosecutor.
The suit alleges Wan charged McGuire “despite the existence of credible and clearly exculpatory evidence” and that Perazich, at Roth’s direction, “prepared to mislead the grand jury by selectively omitting … clearly exculpatory evidence.”
On March 17, 2020, according to the suit, Perazich offered a deal in which the first-degree sexual assault charge would be dropped if McGuire would plead guilty to second-degree sexual assault. Prosecutors would argue for 10 years imprisonment instead of the 20 years possible if McGuire were convicted of first-degree sexual assault. Under the terms of the deal, McGuire would be free to argue for probation if he agreed to serve 18 months in jail.
The deal was rejected by McGuire and his then-court-appointed attorney, the late Brian De Lima.
The lawsuit claims the purpose of the plea deal was to secure a conviction for the benefit of Roth’s campaign, embarrass McGuire and the public defender, and prove Roth’s “unfettered loyalty to HPD employees,” including the accuser’s father.
McGuire also alleges Roth and Perazich instructed police to not talk to his own investigator.
The lawsuit claims McGuire self-reported the sexual assault charges to the state Supreme Court’s Office of Disciplinary Counsel. The ODC, according to the complaint, opened an independent investigation, culminating in a letter to McGuire on March 13, 2020, from Bradley Tamm, ODC’s chief disciplinary counsel.
The letter, according to the suit, said the office had closed its investigation after finding no evidence to support an actionable finding against McGuire.
According to the lawsuit, prosecutors sought dismissal of the charges with prejudice because McGuire hadn’t committed the alleged offenses, and because his accuser’s “credibility would be eviscerated” if she “were subjected to cross-examination.”
The suit claims that as a result of McGuire’s arrest, charges and incarceration prior to posting $30,500 bail on Jan. 22, 2020, he has suffered emotional, physical, societal and economic damages including humiliation, severe emotional distress and death threats.
Assistant Corporation Counsel J Yoshimoto said Thursday the Office of Corporation Counsel, the county’s civil lawyers, “has no comment regarding the complaint filed by Kai McGuire.”
Email John Burnett at jburnett@hawaiitribune-herald.com.