Editors note: This story has been updated to include additional comments from the judge in an amended ruling, in which he said the case detective did not deliberately mislead the court and placed responsibility for excluding video and audio evidence on the deputy prosecutor.
HONOLULU, Hawaii (HawaiiNewsNow) - An Ewa Beach woman is suing the Prosecutor’s Office and the city after a Circuit Court judge determined the agency violated her right to due process.
Julie Ake, 40, was arrested in November 2017 for attempted murder. Honolulu police accused her of trying to run down a man at Pearl City Industrial Park.
But video surveillance of the incident shows the man, who Ake did not know, grab a metal pipe from the side of the street, and start swinging it as he walked.
Ake’s Chrysler 300 then comes into view of the camera and you see the man stop her. She slams on her brakes. The man then starts bashing her car with the metal pipe.
The video shows her reverse suddenly in what she says is an attempt to get away. In a panic, Ake hit the gas, and struck a parked truck, then tried to reverse again.
Video shows another person coming in apparently to help her. That witness squares off with the man, who is still holding the pipe, before he turns and walks away.
Ake called 911 just seconds later.
During the frantic call she tries to explain what happened, but the dispatcher has a hard time understanding her.
When officers arrive, it was Ake who was arrested.
The man with the pipe became the victim after showing an injury to his leg.
“When the detective came and tried to explain to me, he said no, Julie, you’re going to jail for attempted murder and I said you’ve got to be kidding me."
Ake spent five days in jail prior to posting $50,000 bail. Then, she admits, she ran. “I was afraid."
Ake was on HOPE probation and this offense violated her status, sending her to jail for months.
Seven months after she was charged, but ahead of her trial, Circuit Court Judge Todd Eddins dismissed the case with prejudice after finally being able to view the surveillance video, hear the 911 call Ake made, and see the photos of her damaged car.
All that evidence was left out of the case file exhibits, which were submitted to a District Court judge who was required to confirm there was enough evidence for probable cause and schedule Ake to trial.
“It was clearly misconduct,” says William Sink, Ake’s attorney who was stunned by how blunt Eddins was in his ruling.
Eddins writes, “The surveillance recording reveals that (the man with the pipe) was untruthful” about the events of the night.
Eddins described the man as “arming" himself with the pipe and said he "ran in the path of Ake’s car” and that Ake took action in an attempt to prevent her car from colliding with him.
Eddins said the surveillance video and a 911 call Ake made immediately after her car was attacked made it clear that the man with the pipe was the aggressor and he and other witnesses lied in their statements to police.
Eddins said deputy Prosecuting Attorney Lynn Park was responsible for putting together the exhibits for the judge and she deceived the judge and violated Ake’s right to due process by excluding the video and audio of the 911 call.
The judge said the the surveillance was “persuasive” and that video recording is the “best evidence,” typically better than witness accounts due to memory problems and perception.
“There was unquestioned evidentiary value to the event’s taping. Yet, the prosecuting attorney chose not to submit the best evidence.”
He went on to write, “the prosecution deliberately decide(d) not to permit court review of the videotape of the crime, there are due process implications.”
Eddins also called the video “clearly exculpatory” and he said this was a situation of fundamental fairness.
About the 911 call, he described it as Ake’s plea for help and said that the recording should have also been included.
Sink, Ake’s attorney, filed the civil lawsuit late last year, “See that something is done to make the prosecutor’s office have a degree of responsibility and not to prosecute the innocent. There’s plenty of guilty people out there they can prosecute.”
Ake lost her job when she was jailed and said the events strained her relationship with her grown children because she cut them off thinking she’d be locked up for the crimes.
In an unusual process, Eddins issued a second written ruling about five weeks after the first one, in which he softened his criticism of HPD Detective Michael Burger who investigated and collected the video, but did not include them in his summary report on the case.
Burger had testified that he has never included video evidence in those reports, which are mostly the written statements of witnesses and responding officers. Although he did watch the Ake case video within days of her arrest and watched it together with the prosecutor.
In the second order the judge added a footnote which read: "The court does not find that Detective Burger deliberately misled the district court. The Court finds that the detective did not knowingly falsify or misrepresent information within his purview. His declaration was largely hinged on the untrue statement of (the complaining witness)."
The judge added: “Moreover it should be noted that the deputy prosecuting attorney bears significant responsibility for the accuracy of the sealed exhibit.”