Attorney Alexander Silvert, author of “The Mailbox Conspiracy,” joins producer/host Coralie Chun Matayoshi to discuss themes used by the prosecution and defense, examination of the evidence pointing to Eric Thompson’s guilt including motive, DNA, surveillance footage, firearm training, and post-nuptial agreement, likely reasons why Thompson’s wife Joyce didn’t testify, what sentence Thompson is likely to receive (including enhanced sentencing which the jury is deliberating over), and civil suit filed by Jon Tokuhara’s mother against Thompson and his wife for wrongful death, infliction of emotional distress, and negligence by Joyce in creating a risk that her husband might do harm.
Q. Eric Thompson’s first trial for the murder of acupuncturist Jon Tokuhara ended in a hung jury. Now the jury in his second trial has found him guilty of killing his wife’s lover as well as firearms charges, which are both felonies. Before we get into the evidence, I wanted to do a quick anatomy of a trial. What is the purpose of an opening statement?
An opening statement is a roadmap of the facts that each side intends to prove. What the attorneys say in their opening statements is not evidence, but declarations of what they believe the evidence will show. Opening statements are given at the beginning of the trial and the Prosecutor in a criminal trial goes first because the government has the burden of proof.
Q. At the end of the trial, each side gives their closing argument. What is the purpose of a closing argument?
Like the opening statement, closing arguments are not evidence. They are an attempt to persuade the jurors to interpret the evidence in a way that favors their side (i.e. a guilty verdict for the Prosecutor or a not guilty for the Defense). Closing arguments occur after all of the witnesses have testified and all of the evidence has been presented. Attorneys generally summarize the key evidence presented during the trial, highlight the strengths of their case and address any weaknesses in the opposing side's argument. They may also remind the jury of the applicable laws and the burden of proof. In a criminal trial, the Prosecution presents their closing argument first, followed by the Defense counsel. The Prosecutor then has an opportunity for rebuttal and is usually entitled to the last word because the government has the burden of proof.
Q. So, there are opening statements in the beginning and closing arguments at the end, but the most important part is presentation of the evidence in between. And although the jurors can be persuaded to view the evidence one way or another by either side, their verdict must be based on the evidence and nothing else. But because so much evidence is presented at trial, it is sometimes hard for jurors to keep track of everything. Thus, each side often uses a theme to tell their story of what happened. What themes did the Prosecutor and Defense use in this case?
The Prosecution described Thompson as a controlling perfectionist who tried to fix his marriage through murder to restore his perfect life. Thompson worked hard to start a successful business and purchase a $2 million home in East Oahu. When he found out about his wife Joyce’s affair with Jon Tokuhara, he made her confess to her parents, apologize to them for the affair, and admonished her not to see psychics anymore because the psychic apparently told her that it was okay to have an affair with Tokuhara. He also made her sign a post-nuptial agreement saying that if they divorced, he got the house and sole custody of their child.
The Defense complained that shoddy police work resulted in contamination of DNA evidence, didn’t follow up on all leads, and HPD wrongfully focused their entire investigation on Thompson to the exclusion of other possible suspects. They also argued that the surveillance footage didn’t match and that Thompson had an alibi.
Q. The defendant in a criminal case does not need to prove his innocence. It’s the Prosecutor who has the burden of proving that the defendant committed the crime beyond a reasonable doubt. Much of the evidence was circumstantial because rarely is there an eyewitness to a murder. Now let’s discuss the key evidence in the case.
- Motive – although the Prosecution does not have to prove motive, jurors are made up of human beings who naturally want to know why something happened. If they can’t find areasonable explanation for why the defendant would have, for example killed someone, that can create reasonable doubt which can lead to an acquittal. In this case, the prosecution argued that Thompson had a strong motive to kill his wife’s lover. The nature of the gunshot wounds (4 bullets to the face) at close range showed that the killing was personal, and that the perpetrator probably knew the victim. There were no signs of a struggle and a bag containing $4,000 in cash was left untouched, casting doubt that this was a robbery.
The Defense contended that others might also have had a motive to kill Tokuhara, including husbands of other wives who had been romantically involved with Tokuhara, or it may have been someone seeking to collect on a gambling debt.
- DNA evidence – surveillance footage showed a man wearing a white bucket hat go in and out of Tokuhara’s clinic at the time of the murder. The bucket hat fell onto the road as the man hurriedly left the clinic, a homeless man picked it up, and the police recovered it. Ahead of the second trial, DNA from the hat was sent to an outside laboratory for testing because an audit of HPD’s crime lab had found some concerning issues that could cast the DNA results into question. The outside lab had greater capabilities than HPD’s crime lab at the time, and Prosecutors wanted to ensure that the DNA testing was reliable. DNA testing of the bucket hat indicated that Thompson was 16.4 trillion times more likely to be the contributor of the DNA than two control sample contributors. The lab also ruled out DNA belonging to Darryl Fujita (the ex-boyfriend of someone involved with Jon Tokuhara) finding the chance of the DNA being Fujita’s was 13.8 octillion. The power of DNA evidence is that it can include and exclude suspects of a crime.
- Surveillance footage and timeline - surveillance footage showed a man go in and out of Tokuhara’s clinic at the time of the murder (6:15 pm) and driving off at about 6:23 pm eastbound in a white Chevy Silverado truck. Thompson owns such a truck. A burned-out pot in a wheelbarrow found by the police at Thompson’s home could have been used to destroy evidence, and flashes of fire were seen in a neighbor’s surveillance video that evening.
The Defense argued that surveillance footage showed “the hat guy” and the white truck at different places at the same time, and that the murder took place later that evening. Thompson claimed that he was at the Waimanalo dump at the time of the murder disposing of bricks, bought some items at Longs Drugstore using cash (a credit or debit card would have provided proof of his whereabouts), and that he lit a tiki torch to play outside with his daughter that evening.
The prosecution rebutted this argument by saying that a detective had driven both routes to measure how much time it took to go to the dump versus to Tokuhara’s office, and the timing showed that it was much more likely that Thompson had gone to Tokuhara’s office than to the dump.
- Firearms training – Thompson owns .22 caliber guns, the same type of firearms used in the shooting and admitted to going to the range for target practice.
- Post-nuptial agreement – eleven days before the murder, the couple entered into agreement that Thompson would get the house and sole custody of their daughter if they divorced. The Prosecutor alleged that Thompson made his wife sign the agreement to silence her. In addition, a note was found on Joyce’s desk that “an unfaithful spouse will not show remorse,” something the Prosecutor said showed that Thompson was still upset over the affair.
The Defense argued that it was Thompson’s wife Joyce’s idea to enter into the agreement to prove her faithfulness. Their relationship was nearly back to normal, and they were enjoying family time during the holidays. But the Prosecution questioned why Joyce would “give up her motherhood.”
Q. Why wasn’t Thompson’s wife Joyce called to testify? She could have told the jury whether her husband went to dump bricks or buy groceries, and she could have told the jury if the flames seen in video footage were really a tiki torch or something being burned in a wheelbarrow.
Under the spousal privilege rule (Rule 505 of the Hawaii Rules of Evidence), the spouse of the accused has a right to refuse to testify, and it is that spouse’s sole decision. However, if the spouse is going to talk about marital privileged communications, then either spouse can invoke the privilege. So, Eric Thompson’s wife Joyce could have testified, but if she spoke about marital communications, Eric could have stopped her (i.e., Joyce could have testified to what she might have seen or heard, but not what Eric might have told her which would be privileged marital communications). This spousal privilege applies when the defendant and spouse are married at the time of the prosecution and does not survive the dissolution of marriage.
Q. Now that he has been convicted, what kind of sentence might Thompson face?
- Murder in the second degree: life imprisonment with the possibility of parole.
In cases where the crime is especially heinous, the defendant committed murder before, or a firearms offense is involved, the defendant can receive an enhanced sentence of life imprisonment without the possibility of parole if they would pose a danger to society. The jury in this case decided against imposing an enhanced sentence of imprisonment without the possibility of parole.
- Carrying or use of a firearm in commission of a separate felony: up to 20 years or more depending upon the circumstances. It is a Class A felony which requires a separate sentence from that of the underlying offense, but the court does have the discretion to impose a concurrent sentence.
Q. This is not the end. Thompson will probably appeal, but the grounds for appeal need to be errors in how the law was applied, and not a dispute over the facts correct?
Grounds for appeal in a criminal case include legal errors by the trial court, such as improper jury instructions or admission of evidence, insufficient evidence, prosecutorial misconduct, jury misconduct, or ineffective assistance of counsel.
Q. Jon Tokuhara’s mother filed a civil suit for wrongful death, infliction of emotional distress, and negligence against Joyce Thompson for failing to refrain from conduct that would create an unreasonable risk of harm through her husband’s conduct. Since the burden of proof is lower in a civil than a criminal case, what do you think will happen?
Evidence presented in the criminal trial is admissible in the civil case and since the burden of proof is lower, the plaintiff will likely prevail.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.