A federal appeals court has sharply criticized the conduct of a federal prosecutor in a 2007 criminal trial here of a man charged with assaulting military police officers at Mokule'ia.

Gentler criticism was also leveled in the same opinion at the defense attorney and judge involved in the case.

"Everyone could have done more to protect defendant's rights at trial," said the opening sentence of the opinion, written this week by Alex Kozinski, Chief Judge of the 9th U.S. Circuit Court of Appeals.

The ruling overturned the conviction of Rex Harrison on one of two counts of assault and vacated his sentence of two years in prison, and ordered that the case be returned to U.S. District Judge David Ezra for resentencing.

But Harrison, a civilian contractor who installed secure computer networks at military bases, has already served all but three months of his two-year sentence, his current lawyer, Hawai'i Federal Public Defender Peter Wolff said.

Wolff pointed out that while the majority appellate decision written by Kozinski dismissed one of the charges against Harrison, a dissenting opinion written by Judge Edward Bybee was even more critical of the government's trial conduct and said the whole case should be overturned.

Kozinski's opinion said the prosecutor, Special Assistant U.S. Attorney Gabriel Colwell, repeatedly engaged in improper questioning of Harrison during cross examination.

"It's black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness ... but the prosecutors here did just that," Kozinski wrote.

And the questions were not "isolated incidents," the judge said.

"Improper questioning was an organizational theme for the prosecutor's entire cross examination," the opinion said.

Colwell, who is now in private practice in Los Angeles, declined to comment yesterday on the 9th Circuit ruling.

ADMISSION OF ERROR

U.S. Attorney Edward Kubo's office "conceded the impropriety" of the prosecutor's questions in the appeal but said Colwell and his co-counsel were "Special Assistant United States Attorneys on loan from the military," Kozinski wrote.

"That's no excuse at all," the opinion continued.

"When the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants' rights," Kozinski wrote.

The judge also found fault with the defense lawyer and Ezra.

"Indeed, everyone involved could have done better," said Kozinski.

"The defense attorney should have objected as soon as he saw the prosecutors step out of line. And the respected and experienced district judge should not have tolerated this protracted exhibition of unprofessional conduct."

Defense lawyers Victor Bakke and Dean Hoe, who represented Harrison during the trial, could not be reached for comment yesterday.

EZRA: NO COMMENT

Ezra declined comment.

The majority opinion upheld Harrison's conviction on the more serious felony charge of assault and reversed his conviction on a misdemeanor assault count because of what it termed "plain error" in Ezra's instructions to the jury.

That ruling was based in part on another 9th Circuit decision which was issued after the Harrison trial concluded.

"This partial affirmance does not condone what happened at trial," Kozinski wrote.

"Rather, this mixed result suggests only that trials can sometimes serve justice despite strenuous efforts to the contrary," Kozinski concluded.

In his dissenting opinion, Bybee said the "outrageous behavior of the lead prosecutor" in the case was "so extensive that summarizing it all is no easy task."

"We do not permit attorneys to support or undermine witnesses by either vouching for their veracity ("Brutus is an honorable man") or branding them unreliable ("All Cretans are liars")," Bybee said.

The prosecutor's improper questions tainted the jury's ability to impartially judge the credibility of the prosecution witnesses who testified against Harrison, Bybee said.

Some of the questions were "designed to depict Harrison as an absurd, paranoid individual by forcing him repeatedly to accuse other witnesses of lying," Bybee wrote.

Wolff said he may ask that all 29 members of the 9th Circuit Court of Appeals review the case as a group "in light of the strong dissent of Judge Bybee."

Because of the conviction, Wolff said, Harrison has lost the security clearance he needs to perform his work duties on military installations.

MARCH 9, 2007

Harrison was allegedly drunk and combative when he was approached by military police near midnight on March 9, 2007 at Mokule'ia Beach, which is military property closed to the public at night. He allegedly punched one of the officers in the face and threatened the other.

Harrison denied being drunk and said he did not punch or threaten the officers.

Kozinski called the case a "tale of two Rex Harrisons." One was so drunk "he could barely stand straight" and the other was "calm and non-confrontational," the judge wrote.

"The jury must have believed the first story because it convicted Harrison of two counts of assaulting a federal officer."