A Kona Circuit Court judge on Friday granted a third trial continuance and denied a motion to dismiss charges for a 20-year-old man accused of sexually assaulting a septuagenarian last summer at a Kawaihae campground.
Chief Judge Robert D.S Kim granted Special Deputy Attorney General Kristen Yamamoto’s motion to continue the trial of Zeth Browder set for Sept. 1, but warned the prosecutor this would be the last continuance granted.
Yamamoto argued via teleconference from Honolulu that the victim was unable to appear in person amid the pandemic because of her advanced age and medical history, warranting the continuation of Browder’s jury trial.
Yamamoto is prosecuting the case because of an undisclosed conflict of interest with the Hawaii County Office of the Prosecuting Attorney.
Kim expressed concern that the motion was open ended, and due to the continuing nature of COVID-19 delaying the trial indefinitely would be prejudicial to the defendant.
Browder’s Deputy Public Defender James Greenberg argued that his client has been in custody for 442 days and objected to the continuance, pushing for the trial to commence on its scheduled day.
“This is the third motion to continue citing availability every time,” said Greenberg. “It’s always about complainant unavailability because of COVID. Hawaii is the safest place in the country.”
Kim set the new trial date for Oct. 20, but noted that Hawaii Supreme Court Chief Justice Mark Recktenwald could possibly extend the moratorium on jury trials if coronavirus case numbers continue to surge.
Kim denied Greenberg’s motion to dismiss the charges due to Rule 48, the right to a speedy trial.
Kim explained the emergency orders under COVID suspending jury trials are not to be counted against the 180-day speedy trial rule.
Kim gave Browder the option to have a bench trial, which is heard in front of the judge with no jury, however, Browder declined.
Browder has been confined at Hawaii Community Correction Center in lieu of $166,000 bail since his arrest last June. 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 female victim, now 79 years old, reported that she had been sexually assaulted by a man who was also camping at Spencer Beach Park, a county facility in South Kohala. Police identified and subsequently charged Browder in connection with the alleged crime.
Kim said the Judiciary is working to get it safe for counsel, the defendant, witnesses and jury to make sure justice is served.