Counsel for a 19-year-old man accused of sexually assaulting a septuagenarian last summer at a Kawaihae campground is seeking “emergency and humanitarian release” for his client due to the COVID-19 pandemic.
Zeth Robert Browder has been confined at Hawaii Community Correction Center in lieu of $166,000 bail since his arrest June 15, 2019. He has pleaded not guilty to two counts each first-degree sexual assault and third-degree sexual assault and one count each first-degree burglary, kidnapping and tampering with evidence.
According to prosecutors and police, the victim, a 78-year-old woman, reported that she had been sexually assaulted by a man who was also camping at Spencer Beach Park. Police identified and subsequently charged Browder in connection with the alleged crime.
Trial, which was slated to begin March 10 but was delayed pursuant to an order by Hawaii Supreme Court Chief Justice Mark Recktenwald suspending all criminal trials to after April 30, is now is set for June 2.
The motion to be heard this week seeks an order from Kona Circuit Court Judge Robert D.S. Kim to release Browder on his own recognizance during the pendency of his case, or in the alternative, supervised release due to the “extraordinary circumstances related to the COVID-19 pandemic.”
Deputy Public Defender James Greenberg stated Browder can’t afford to post bail and his client’s health is at risk.
“The COVID-19 pandemic is a public health emergency — one in which time is of the essence. The sooner we take action to prevent the spread of this virus, the safer our community will be,” Greenberg wrote in his motion filed with the court on March 23. … “Releasing Defendant so he can safely distance himself from others, to be with his family, and access his attorney is not only in the interest of justice, but also in the interest of public health. Zeth is only 19 years old, this is the first time he’s ever been in custody. He has never been convicted of a felony and has no prior criminal history.”
Greenberg argued conditions of pretrial confinement create the “ideal environment for the transmission of contagious disease,” that Hawaii Community Correctional Center lacks the resources to address a potential facility-wide outbreak, the release of inmates in other jurisdictions and countries to reduce the spread of coronavirus, and that one charged with a crime is presumed innocent.
“This Court should consider the ‘total harm and benefits to prisoner and society’ that continued pretrial imprisonment Defendant will yield, relative to the heightened health risks posed to Defendant during this rapidly encroaching pandemic,” Greenberg’s motion reads.
Further, he argued, continued unnecessary confinement violates Browder’s Eighth Amendment right as it presents risk of serious damage to future health. It could also inhibit his client’s access to counsel.
“To be sure, there may be some people who present such a grave danger to society that they cannot be released pre-trial. Defendant is not such a person, as evidenced by the fact that he is not being held without bail pursuant to HRS 804-3(b). Continuing to detain Defendant for no other reason than that he cannot afford cash bond is not only inimical to public safety, but morally and legally wrong.”
Prosecutors on Friday filed the state’s opposition to Greenberg’s motion, pointing to the actions taken to date to prevent the spread of COVID-19 in jail facilities, including suspending all visits and work furlough programs and adopting a pandemic response plan. They also pointed to no persons under investigation related to the facilities.
In addition, prosecutors argued, health care staff have provided inmates with ways to prevent the spread of COVID-19 and cleaning and sanitizing of facilities has increased.
“While the outbreak of Covid-19 [sic] is novel to our community, DPS is experienced with dealing with highly contagious viruses and diseases within its facilities,” reads the filing by Honolulu Deputy Prosecuting Attorney Kristin Yamamoto, who is representing the state because of an undisclosed conflict of interest in the Hawaii County Prosecuting Attorney’s Office.
Prosecutors also argued Browder is a danger to the public.
“The fact that there is a pandemic does not change the seriousness of the Defendant’s conduct nor the reason why the Defendant was placed in custody,” reads the filing.
She concluded stating that “the fact that the Defendant may or may not contract Covid-19 [sic] while in custody should have no bearing on the Court’s decision regarding release. Rather this court should apply the HRS 804-4 factors in its determination, which both weigh in favor on confirming defendant’s bail amount at $166,000.”