A high court opinion released Thursday overturning an Oahu murder conviction that could have profound ramifications on court proceedings across the state has Big Island officials concerned.
In the 3-2 ruling in the case of State v. Richard Obrero, the Hawaii Supreme Court determined that Hawaii Revised Statutes Section 801-1 precludes the state from initiating felony prosecutions by way of complaint and preliminary hearing before a judge. That means charges in all serious felony cases — for example murder, robbery, sexual assault, etc. — must be brought via grand jury indictment only.
Hawaii County Prosecuting Attorney Kelden Waltjen said his office was “extremely disappointed” in the court’s decision that “contradicts established criminal law practices and procedures” in place in Hawaii since 1982.
“Unfortunately, this opinion will affect more than just Mr. Obrero and his single case in Honolulu. It will have a negative impact on our island and the criminal justice system statewide,” Waltjen told West Hawaii Today. “Defense counsel statewide will likely use the Obrero decision to attack criminal charges and argue that cases should be dismissed based upon a technicality and oversight that occurred 40 years ago, not on the merits of the case, resulting in the potential for premature dismissals and the release of serious offenders further jeopardizing public safety. Defense counsel has already started to make oral motions in court and submitted filed motions to dismiss cases on Hawaii Island.”
Waltjen also stated the opinion “disregards the intent of voters, interferes with law enforcement, and jeopardizes public safety.”
“This will jeopardize the commencement of criminal proceedings for arrest and charge situations in serious cases, including but not limited to murder, kidnapping, robbery, domestic violence, drug trafficking, and sexual assault,” he said. “As a result, offenders may be released until prosecutors are able to proceed via information charging or schedule and coordinate a grand jury presentation, resulting in significant public safety concerns.”
Prior to Thursday’s ruling, it had been “settled practice and procedure” that probable cause to support felony criminal charges could be initiated via grand jury indictment, information charging, or complaint and preliminary hearing. Now prosecutors will no longer be able to use information charging, which occurs when prosecutors initiate felony cases by written complaint with supporting documentation to establish probable cause, nor will they be able to bring charges by filing a complaint with the court and holding a preliminary hearing before a judge to establish probable cause.
Requiring a grand jury to decide probable cause is also problematic because opportunities for grand jury presentation are limited on the outer islands. Honolulu’s grand jury meets twice a week.
“Here on Hawaii island, we are only afforded grand jury twice per month in Hilo and once per month in Kona. As a result, we are working with Judiciary officials to discuss the possibility of increasing the number of grand juries convened per month and considering other options to expedite processes,” he said.
Waltjen said he is working with Acting Police Chief Kenneth Bugado to coordinate staff, resources, and response as needed to ensure public safety.
“I’ve also reached out to our state legislators, County Council, Mayor Roth, and the Governor’s Office to express my concerns and stress the urgency to address this issue,” he said.
Mayor Mitch Roth told West Hawaii Today on Friday the measure puts the entire community in danger.
“It will make the job of the prosecutor a lot more difficult,” said Roth. “There will have to be changes made, to have more grand juries. What happens if there is a major crime and the grand jury doesn’t meet for two or three weeks? It is not safe for our community.”
Roth said he is guessing there will be a request for reconsideration.
“I hope the court grants it because from a victim’s standpoint of view,” he said. “This is a really bad decision.”
While the court’s decision is final, the opinion did say the state Legislature could still change the law.
The majority ruling, in part, reads, “If the Legislature wants to strip people of the grand jury protections afforded by HRS § 801-1, it is free to do so. It may expressly repeal HRS § 801-1.”
The Legislature, however, does not convene until January when the process of introducing bills to change laws begins. Those bills, if passed bills passed by both chambers, do not go to the governor for his signature until the end of the legislative session in early May. But, a special session could be called by the governor or at written request of two-thirds of the members if the House and Senate.
Waltjen said his office is working now to limit the “effect” of the Thursday state Supreme Court ruling.
“Our office is going through all pending matters and determining where we need to take action to correct any potential issues,” he said. “We will then prioritize the use of our grand jury opportunities and utilize information charging where possible to make best use of our resources.”
Presenting the majority opinion were judges Sabrina McKenna, Michael Wilson and Todd Eddins with Paula Nakayama concurring separately and dissenting with whom McKenna joined in part. Chief Justice Mark Recktenwald presented a dissenting opinion that Nakayama joined.
“The fact remains that the Majority today reached a result that neither the legislature nor the electorate ever intended,” Recktenwald wrote in the dissenting opinion. “ To the contrary, for forty years, prosecutors and defense lawyers alike have apparently assumed that any felony may be prosecuted using a preliminary hearing.”
Kathleen McGilvray, CEO of YWCA of Hawaii Island, which provides support services for victims of sexual assault said no matter how cases go forward, the agency will be there for its clients.
“The recent Hawaii Supreme Court case means sexual assault felonies must be charged via a grand jury indictment rather than at a preliminary hearing. One immediate result could be that current, pending cases in which the perpetrator was charged during a preliminary hearing will have to be dismissed and refiled, thereby drawing out the process and prolonging stress for the victim,” she said. “One potential upside going forward is that grand jury hearings do not allow cross examination of the victim, which can be excruciating. In any event, our advocates will support the victim throughout the process, including accompanying them to hearings and trials if they request it.”
Rick Mackapinlac, lead public defender at the Kona Office of the Public Defender, was unable to be reached as of press-time. By the close of court on Friday, dozens of oral motions had been made or written motions filed to dismiss serious felony cases remanded to Circuit Court that were not brought via grand jury indictment.
