- Associated Press - Wednesday, January 15, 2014

HONOLULU (AP) - A man convicted of a 2009 murder should get a new trial because jurors weren’t allowed to hear expert testimony that the shooting victim had cocaine in his system, the Hawaii Supreme Court ruled.

Phillip DeLeon was convicted of second-degree murder in the death of Shawn Powell, who was shot after an altercation at a Honolulu nightclub. DeLeon was sentenced to life with the possibility for parole.

It was wrong to exclude expert testimony about cocaine in Powell’s blood at the time of the shooting, according to the ruling issued Wednesday. Dave Koga, spokesman for the Honolulu prosecuting attorney’s office, declined to comment. He said attorneys were still reviewing the ruling.

Megan Kau, the former deputy prosecutor who tried the case, recalled that it was tough to get witnesses to testify back then. “It’s going to be difficult to retry,” said Kau, now a defense attorney. “The fact that the victim has drugs in his or her system, juries look at that and say, why should we convict this guy? That’s why I fought so hard to keep that cocaine in his system out of evidence.”

During the three-week trial, the prosecution presented the theory that DeLeon followed Powell and his friends to a karaoke bar to seek revenge for getting slapped earlier at the nightclub, Kau recalled, while the defense’s version was that he coincidentally showed up at the same karaoke bar and fired in self-defense.

The ruling said the circuit court judge was wrong to require the defense expert to be able to testify to a reasonable degree of scientific certainty, instead of probability.

It sets a new standard for scientific evidence, said Phyllis Hironaka, the public defender who appealed on DeLeon’s behalf. “There’s a vast difference between probability and certainty,” she said. “I’m glad the Supreme Court made law in an area that was muddy.”

Michael Green, who was DeLeon’s defense attorney during the trial, said the ruling brings some vindication. “I feel better that the court agreed with my position at the time of the trial,” he said. “Turns out we were right about that issue.”


Follow Jennifer Sinco Kelleher at https://www.twitter.com/JenHapa .

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