For more than a decade at least, Oahu’s Family Court judges ignored court rules in handling thousands of misdemeanor domestic abuse cases without holding a second arraignment for defendants when required.
Defense attorneys didn’t complain, but when Honolulu lawyer Steven Barta realized his client charged with domestic abuse didn’t receive the second arraignment, he challenged the process.
"I think this is the first time anybody raised it," he said. "It was real clear to me the rules had not been followed."
Last month, the Hawaii Supreme Court agreed with Barta and overturned the domestic abuse conviction of one of his clients, Susil Basnet.
The ruling sent shock waves through Family Court in Honolulu and set in motion the dismissal of hundreds of cases for defendants who didn’t get the second arraignment.
City prosecutors now estimate that about 750 misdemeanor cases involving domestic abuse and violations of protective orders will be tossed out.
Prosecutor Keith Kaneshiro said earlier that his office would refile charges in all of the dismissed cases, but he now says charges in only a majority of cases will be refiled.
In the other cases, the defendants will escape prosecution.
"It’s regrettable that it’s going to happen," he told the Honolulu Star-Advertiser. "It’s a shame that the criminal justice system is not really going to be dispensing justice."
City prosecutors file more than 1,300 cases a year of misdemeanor domestic abuse and violation of protective orders.
Because they are misdemeanor cases, arraignments are held before a Family Court district judge. The charges carry a sentence of up to a year in jail.
If a defendant asks for a jury trial, the case is sent to a Family Court circuit judge, who handles jury trials.
The Hawaii Rules of Penal Procedure mandate that when a case is sent to a circuit judge, the defendants must have a second arraignment within 14 days.
But Family Court circuit judges were not holding a second arraignment and the cases proceeded to trial.
Tammy Mori, state Judiciary spokeswoman, said the practice appears to have been in place since at least 2000 and may have started in 1994 with a project aimed at reducing the backlog of domestic violence cases.
Barta raised the issue in Basnet’s case before the Family Court, asking for a dismissal of the charge. He argued that without the second arraignment, the Family Court circuit judge didn’t have jurisdiction to preside over the case.
He acknowledged his argument was "very upsetting" because it would jeopardize other cases.
The Family Court judge denied the dismissal. A jury found Basnet guilty of abusing his wife.
He was sentenced to the mandatory two days in jail, placed on two years’ probation and ordered to undergo domestic violence intervention as directed by the probation officer.
The sentence was stayed pending his appeal.
In June, a three-judge panel of the Intermediate Court of Appeals unanimously affirmed the conviction. The appeals court held that Basnet could not show how his rights were harmed in not having a second arraignment on the same charge.
The appeals judges held that any violation of the rule was "harmless error."
But in a unanimous 31-page ruling written by Associate Justice Simeon Acoba, the Hawaii Supreme Court disagreed.
The high court held that when Barta objected to the violation, he did not have to show his client was harmed.
One purpose of the arraignment would be to inform the defendant of the charge, and if the defendant objects to not having the arraignment, the conviction would "constitute a denial of due process," the high court ruled.
"It’s the appropriate decision and the fact that it’s unanimous, there’s no real question about it," Barta said.
Since the ruling, the Family Court has changed its procedures and is now holding second arraignments before the Family Court circuit judges.
But they’ve also been dismissing pending misdemeanor abuse and protective order cases for defendants who had asked for jury trials but had not been arraigned within the 14 days.
The high court’s ruling, in general, doesn’t affect past convictions.
The state Judiciary said about 202 cases have been dismissed and estimated another 190 will be thrown out. But Kaneshiro said the total number of dismissals will be about 750.
He said he instructed his deputies to review the dismissed cases and he will decide whether to proceed with new charges.
The criteria will be whether the office can find the complaining witnesses, whether they are still in the jurisdiction and whether the complaining witnesses have a record of not cooperating with the prosecution, Kaneshiro said.
But he said he will also take into account whether the defendant is a repeat offender and is considered dangerous.
Kaneshiro also said some charges won’t be refiled if the speedy-trial requirements for the defendants cannot be met.
Some defense attorneys have refrained from asking for dismissals because a case must be brought to trial within six months and the filing of new charges would trigger a new six-month window of time.
However, if a judge throws out a case without a request from the defense, the six-month clock would continue to run — leaving prosecutors with not much time to file new charges, Kaneshiro said.
He said in those cases, prosecutors will try to refile the charges immediately and ask for an expedited trial, but won’t refile if the six-month requirement can’t be met.
The prosecutor said he could not give a better estimate of how many cases will be refiled or not refiled because he has yet to review the cases.
Regarding Basnet, Kaneshiro said he doesn’t know yet whether a new charge will be filed.
Barta said he hopes the prosecution doesn’t refile.
He said his client has already suffered. He spent some time in jail and the case caused him great anxiety and money. If there’s a retrial, Barnet will take the stand and tell the jury his side of the story, the defense lawyer said.
"There might be a little bit of pain," he said about the high court’s ruling resulting in the dismissals. "But it avoids more pain down the road."
He said once court rules are bent, "we wind up with a system that is not stable."
State Public Defender Jack Tonaki said the Family Court’s practice was never questioned because that’s the way the Family Court misdemeanor jury trial cases were handled.
"It’s a credit to him," Tonaki said about Barta’s challenge to the procedure. "He found something we missed all these years, obviously."
