KAILUA-KONA — A Circuit Court judge last week verbally issued a second order to show cause to the warden of Hawaii Community Correctional Center for not transporting defendants to the Keahuolu Courthouse for scheduled proceedings.
Judge Robert D.S. Kim was set to rule Oct. 3 on the fitness of Zeth Robert Browder, 18, to proceed to trial following a mental evaluation conducted by three doctors. However, the defendant, who is facing sex assault and other charges in connection with a summer sex assault at Spencer Beach Park, was not transported by the Department of Public Safety for the court hearing.
After learning of the bungle, Kim verbally ordered the Hilo jail’s warden, Peter Cabreros, to show cause for not transporting Browder to the hearing. He then set a continued hearing for the defendant.
Browder’s absence marked the second time in less than three weeks that the Department of Public Safety Sheriff Division has failed to transport a defendant in a high-profile criminal case for a hearing in Kim’s court.
On Sept. 16, Kuuipo Nihipali was not transported when Kim was to consider a motion for mental evaluation for the defendant.
Her co-defendant, Ashley Nihipali, was transported to the hearing, despite having no motions before the court that day. Because the two are charged together as one case, both must appear at hearings.
The judge again issued a verbal order for the warden to show cause.
No hearing date has been set for either order, according to Judiciary court records. Kim’s office did not respond to a request for clarification regarding the orders and when Kim wants Cabreros before the court.
Toni Schwartz, Department of Public Safety spokeswoman, acknowledged the “oversight” that occurred with both cases in an emailed response to West Hawaii Today.
In the case of Nihipalis, who each face murder and other charges in connection with the Halloween 2018 death of a 6-year-old Kona boy, Schwartz said the court calendar faxed to Hawaii Community Correctional Center for Sept. 16 showed “State of Hawaii vs. Ashley Nihipali aka Ashley Balai and Kuuipo Nihipali.”
“It is believed that the staff saw the same last name and mistook it for part of the alias,” Schwartz said of Kuuipo Nihipali not being transported to court. “The oversight was addressed by the Watch Commander and Court Logistics Officer.”
Schwartz confirmed there was also an “oversight” in the transport of Browder last Thursday when he was not brought before Kim for a return on doctor’s reports. An investigation is underway, she said, noting the “oversight” was addressed by the warden, watch commander and court logistics officer.
In fiscal year 2018-19, which ended June 30, the department transported 1,729 inmates for hearings to Family, District and Circuit courts in Kona. Up until Sept. 3, court hearings were spread over three sites until the four operations were brought under a single roof at Keahuolu Courthouse.
In addition to Nihipali and Browder, the department also did not transport Shannon Ke as required for a preliminary hearing in April in District Court. Ke is accused of attempted murder of a Hawaii Police Department officer in what prosecutors have called a racially motivated attack.
Beyond those three, it is unclear how many times this year defendants in custody of the Department of Public Safety have not been transported to the courts in Kona because the department said it will need an official government records request to research the statistics. West Hawaii Today will file for those records and publish them when available.
From January 2018 to January, however, there were 10 instances when inmates refused to appear in court or could not appear due to extenuating circumstances, according to West Hawaii Today archives.
“We acknowledge that procedural improvements are an on-going effort for the current system in the 3rd Circuit Court,” Schwartz said. “The Department/HCCC continues to re-evaluate and assess our internal practices.”
Last year, the warden was called to court to answer for transport issues as well as for the mistaken release of a murder suspect, Brian Lee Smith, who was released erroneously. Smith turned himself in a short time later without incident.
Since January, Schwartz said, the department and jail have made significant improvements to include filling civilian records positions, creating new Adult Corrections Officers posts, training both civilian and uniform staff in records, intake and transportation, and initiating a pilot program with the 3rd Circuit for the electronic transmission of court orders.
The department, she said, is currently working with the Judiciary to streamline the process for receiving court orders and calendars.
“The Department of Public Safety is committed to working collaboratively with our Judicial partner on ways to make procedural improvements to the current system,” Schwartz said in the email. “We continue to sit with them to discuss ways to tighten up the process in the 3rd Circuit. Those discussions are continuous and on-going.”
Though Kuuipo Nihipali was not transported for the hearing Sept. 16, she was brought to court as ordered Oct. 2. Kim ordered a mental evaluation by a panel of three doctors and will take up the matter in December. Jury trial set for next month is off the calendar pending the outcome of the evaluation.
Browder, meanwhile, has yet to appear before Kim.
On Monday, he refused to come out of his cell, and was not transported to court. Kim issued a $50,000 bench warrant for contempt of court, commanding his arrest and appearance before the court.