KAILUA-KONA — A circuit court judge ordered the county jail’s warden to court for a second time after a pretrial murder detainee who was previously erroneously released from custody wasn’t brought to court for a recent hearing.
Brian Lee Smith was set to appear in 3rd Circuit Court on Dec. 21 for four hours to hear several motions in the case. However, when the Honaunau man’s name was called, he was not present, despite being in custody at Hawaii Community Correctional Center and unable to post his $2 million bail.
On Wednesday, Smith’s counsel Jason Kwiat said while it didn’t delay the trial, there were important motions that needed to be heard.
“It’s frustrating,” Kwiat said. “If they’re going to keep a man who’s presumed innocent in custody then they need to make sure that he makes his hearings.”
Smith is facing numerous charges, including second-degree murder, for a shooting incident that occurred on Painted Church Road in Honaunau on June 23. The incident resulted in the death of Thomas Ballesteros Jr. Smith and another man suffered gunshot wounds during the ordeal.
The Department of Public Safety Sheriff Division’s failed transport is the second mishap related to Smith’s case. On July 24, Hawaii Community Correctional Center erroneously released Smith and admitted not realizing the mistake until the morning of July 26. Smith turned himself in that evening.
HCCC Warden Peter Cabreros was ordered before the court to explain the circumstances behind both mistakes. A Department of Public Safety probe of the July mistaken release is ongoing. (See adjacent story.)
His most recent appearance was Jan. 3, when Cabreros appeared before 3rd Circuit Court Judge Melvin Fujino to explain the blunder. According to court minutes, jail staff had not received or couldn’t find Dec. 21’s court calendar and requested to have another calendar refaxed the day before.
The jail staffer who had made the request didn’t wait to see if another was sent because she had to attend to an air transport. When she returned at 4:30 p.m., the minutes indicate a calendar had not been sent.
The court minutes indicate the court confirmed the fax was received by the jail.
The jail conceded in court that it could have come through and been misfiled by someone else as the jail does not have one staff member assigned to review faxes from the machine.
Smith was scheduled for jury trial on Tuesday. However, Fujino granted Kwiat’s request for a continuance and it has been rescheduled for April.
The first error in the case, Smith’s mistaken release from HCCC in July, sparked community outrage. The 49-year-old was originally being held on bail of $1.15 million. After the incident, Fujino upped Smith’s bail to $2 million.
“It’s so frustrating,” Kwiat said. “They wrongfully released him, he turns himself, (they) increase his bail and don’t take him to his court appointments.”
Kwiat added it’s an ongoing systemic issue that the courts and DPS need to address.
“I know they need to start communicating more effectively among the agencies,” the attorney said. “In my mind, it’s unconstitutional to hold a person if they can’t get them to their court appointments. If they’re unable to do that they should allow releases.”
Hawaii County Deputy Prosecutor Chase Murray agreed the snafu is unfair to the defendant. He added it’s also frustrating because there were witnesses subpoenaed to testify during the December hearing who had to be recalled back on Jan. 3.
When a defendant is not brought to court, Jan Kagehiro, director of Communications and Community Relations for the Hawaii State Judiciary said, the hearing has to be continued, which delays the timely adjudication of the criminal case. In addition, the defendant’s speedy trial rights can be affected.
“Timely access to justice is important for everyone involved,” Kagehiro said.
The right to a speedy trial is protected under the Sixth Amendment. Upon indictment, the clock begins ticking for prosecutors to bring the case to trial. In Hawaii, the state has six months to try an accused, unless he or she waives his or her right to such speedy trial allowing for a continuance, which has occurred in Smith’s case.
An indictment filed in 3rd Circuit Court on July 9 charged Smith with second-degree murder, second-degree attempted murder, first-degree attempted murder, two counts of ownership or possession (firearm) prohibited and two counts of carrying or use of a firearm in the commission of a separate felony in connection with the shooting.
If convicted on the murder charge or any of the attempted murder counts, Smith could face a lifetime prison sentence without the possibility of parole.