Kendra O’Brien, a psychologist, has taken off work nearly a dozen times over the past 14 months to go to court.
Each time, O’Brien has had to take leave from her job, cancel patient appointments and rearrange her schedule. A couple times, her two children had to steel themselves to give testimony, meeting with psychologists, only to be told their participation wasn’t needed yet.
O’Brien’s multiple trips to court stemmed from a March 2017 incident in which her husband allegedly hit her with a lomi stick at their Kailua home, punched her in the stomach, crushed her cellphone, slammed a car door on her and shoved her into concrete, threatening to kill her, according to court documents. Their two children, then 10 and 12, witnessed the alleged abuse, the documents say.
O’Brien subsequently obtained a temporary restraining order and a five-year protective order against her husband, who was eventually charged with felony abuse and violating the two orders. Her husband has pleaded not guilty to the criminal charges.
She has had to go to court repeatedly, often because the proceedings were postponed. The criminal cases are still pending and likely will require more court trips. The couple also are pursing a divorce.
“I do realize the system is slow,” O’Brien, 58, told the Honolulu Star-Advertiser, “but it’s the only choice we have. If you don’t go through all these different things, jump through all these hoops, then nothing happens.”
O’Brien’s experience underscores what prosecutors, defense attorneys, crime victims and others say is a serious problem: a strained court system in which domestic violence, drunken driving and other cases frequently are delayed multiple times, disrupting the lives of victims, defendants, witnesses and others who have to return again and again as justice is pursued.
SEEKING COURT PROTECTIONAfter getting a temporary restraining order against her husband last year, Kendra O’Brien’s civil case to secure a protective order was continued several times, highlighting a problem advocates for domestic violence victims say is common.
>> Aug. 22, 2017: Court grants Kendra O’Brien a temporary restraining order against her husband for alleged abuse. He’s prohibited from making any contact with his wife.
>> Sept. 6: Neither side has attorney at initial court hearing. O’Brien’s husband requests continuance to seek legal counsel; case continued to Oct. 4
>> Oct. 4: O’Brien’s husband, the respodent, requests another continuance, mentions pending criminal matter; court grants it over objection of Kendra, the petitioner. New court date: Nov. 14
>> Nov. 14: Citing absence of his lawyer, O’Brien’s husband requests another continuance; Kendra objects. Court grants delay to Jan. 30, 2018, warns Daniel this may be his last one
>> Jan. 30, 2018: Court grants Daniel another continuance – over Kendra’s objection – to obtain legal counsel. New date: Feb. 13
>> Feb. 13: Both sides agree to five-year protective order, prohibiting O’Brien’s husband from making contact with his wife during that period, and a three-year order restricting contact with the couple’s two children to supervised visits.
The crowded dockets are especially evident on Oahu, particularly with misdemeanors and temporary restraining orders in domestic disputes. The latter are civil, not criminal, matters.
“You couldn’t pay me enough money to go to the courthouse in Kapolei,” said Katherine “Kat” Aikau, who had multiple trips there for two TROs she sought against her late husband. “It’s so traumatic.”
The delays can wear down participants and, in the criminal cases, sometimes lead to dismissals of the charges, leaving the victims without their day in court and the defendants not having to account for what they were accused of — unless prosecutors refile charges.
Often, the cases are continued because one side or the other is not ready to proceed, typically delaying a trial for a month or more. Sometimes cases can’t proceed because the courts simply don’t have the capacity to handle all matters scheduled for that day.
Witnesses, who can wait for an hour or two and sometimes longer before learning a case is continued, are told to return at a later date.
On a Monday morning in late April, Judge Rowena Somerville had nearly 50 domestic violence cases — a higher number than usual — just on her morning calendar. One had been continued at least a dozen times.
Prosecutors say about 500 of the roughly 1,200 misdemeanor domestic abuse cases charged last year on Oahu were dismissed for congestion-related reasons — a contention the Judiciary disputes.
MULTIPLE DELAYS IN CRIMINAL CASEThe alleged abuse that led to the issuing of a temporary restraining order against Kendra O’Brien’s husband also triggered the filing of a felony abuse charge against him. The pending case has been continued more than half a dozen times.
>> March 3, 2017: Kendra O’Brien’s husband makes initial District Court appearance
>> March 7: O’Brien’s husband appears without lawyer. Court grants his request for continuance to retain counsel. O’Brien ordered to return to court on April 3.
>> April 3: After hearing Kendra O’Brien’s testimony, court finds probable cause to proceed with the criminal charge and refers case to Circuit Court for plea. New date: April 17
>> April 17: Defendant pleads not guity, court schedules trial for June
>> June 5: Defense requests continuance to meet with defendant, who had been hospitalized, for trial preparation. New date: Aug. 8
>> Aug. 21: Defense requests continuance because of plea offer. New date: Oct. 23
>> Oct. 10: Defense requests further continuance because of ongoing plea negotiations. New date: Jan. 22, 2018
>> Jan. 2, 2018: Judge recuses himself, the first of several recusals
>> Jan. 16: Court grants defense motion to continue case because of ongoing plea negotiations. New date: March 19
>> March 13: Court grants defense motion for continuance because defendant arraigned on new charge. New date: May 14
>> May 8: Court grants defense request to continue case to consider counter-offer from prosecutors received that morning. New date: May 15
>> May 15: Court grants defense continuance for plea negotiations. New date: July 16
But the general backlog problem was serious enough that the Public Defender’s Office told lawmakers in the recent legislative session that court congestion was the No. 1 issue in domestic violence cases.
During the same session, Prosecutor Keith Kaneshiro unsuccessfully sought passage of a bill that would have excluded delays in criminal cases due to a congested docket from counting against the six months the government has to begin a trial. The bill didn’t have a hearing.
“I’m fighting a culture of continuances,” Jeen Kwak, deputy prosecutor and chief of the office’s misdemeanor and traffic division, told the Star-Advertiser. “I just hate it. It’s too easy.”
Touching on the congestion problem, the Honolulu auditor last year recommended the city continue lobbying for more judicial resources for domestic violence proceedings, noting that many cases are dismissed, preventing victims from having their day in court.
‘Are we achieving justice?’
The issue of court congestion was underscored in two recent high-profile criminal cases: the killing of 7-year-old Reef Aikau by his father last year and a hit-and-run in which two men were killed in Makaha in February.
Gerald Aikau was facing charges for allegedly abusing his wife and violating a restraining order at the time he fatally stabbed his son a year ago and then took his own life. The court proceedings had been delayed seven times prior to the murder-suicide. Katherine Aikau, Reef’s mother and Gerald’s wife, cited the delays in contending that the system failed her son, contributing to his death.
The hit-and-run suspect, Sierra Burns, had been arrested previously for allegedly driving while under the influence, but that case was dismissed in late 2016 partly because of court congestion. Police say alcohol was a factor in the Makaha hit-and-run.
The courts have taken multiple steps to address heavy caseloads, including making greater use of per-diem judges, installing courtroom phone lines that are connected directly to the Public Defender’s Office for expediting defendant appointments, and shuffling trial-ready cases to judges who finish their calendars early that day.
Kaneshiro and his deputies also say judges, cognizant of the congestion problem, started limiting to one the number of continuances the prosecution, or state, gets in misdemeanor cases for not being ready to proceed. Typically, the reason the state seeks a delay is because the victim is not present.
If the prosecution shows up a second time unready, prosecutors say, the case usually is dismissed — a “two-and-out” practice they believe is unfair. The Judiciary says no such policy exists and that each case is considered on its merits.
Judges dismiss cases with or without prejudice; the latter allows prosecutors to refile charges.
“This is supposed to be a place where you dispense justice,” Kaneshiro said of the courts. “That’s the whole problem. Are we achieving justice by getting all these cases dismissed?”
But judges say they follow the law and Constitution when granting continuances and dismissals. A continuance can be granted, for instance, when a defendant needs more time to hire a lawyer, and a dismissal can be granted for the state’s “lack of prosecution.”
Attorneys and advocates contacted by the Star-Advertiser lauded the court staff and judges for doing what they can with limited resources to address the congestion problem.
“The judges are busting their butts, and the staffs are working really hard,” said attorney Greg Frey of Coates & Frey, a divorce and family law firm.
To make the process more efficient, “our attitude is to think about how we can be as creative as we can,” said Judge R. Mark Browning, the 1st Circuit’s chief judge.
Asked whether he was satisfied with the current state of affairs, he said, “We’re never satisfied with the status quo.”
Browning said judges take seriously the trust the public places on the courts to ensure the judicial process is fair and timely. “None of us take that lightly at all,” he added. “It’s a responsibility we feel deeply.”
To help address the heavy caseloads, the Judiciary in recent years has sought with mixed success additional state funding from the Legislature.
“I think there’s widespread agreement that the courts are not adequately resourced,” said Nanci Kreidman, chief executive officer of the Domestic Violence Advocacy Center.
‘Just too many cases’
To a certain degree, court congestion always will exist.
Deciding how many cases — especially the more plentiful ones, such as misdemeanors — to place on a court calendar is an inexact science. It is usually not known ahead of time whether both sides will be ready to proceed, precisely how much time each case will take or whether unforeseen complications will surface. Calendars have to be padded to allow for unpredictability and flexibility.
Still, some say the Oahu backlog has worsened in recent years as caseloads have grown in number and complexity.
“There are just too many cases and too few courtrooms,” said state Public Defender Jack Tonaki.
Yet the number of misdemeanor domestic violence cases that have been dismissed because of Rule 48, the speedy-trial requirement, has fallen dramatically.
In 2013 there were about 190 Rule 48 dismissals, according to the auditor’s report. By last year the total had dropped to only three, prosecutors say.
What is not reflected in those numbers, prosecutors add, is that dismissals now are coming before the Rule 48 deadline, with judges citing other reasons.
Tiffany Kaeo, team captain for the prosecutor’s domestic violence felony division, recalled a recent case in which a mother and her minor son, the victim, came to court three times for the setting of a trial date. Each time, the case was continued for another month, including twice because of court congestion.
On the fourth hearing, the son and mother, who was a witness, didn’t show up. Because of their absence, the prosecution wasn’t ready to proceed, and the case was dismissed.
“It’s just an example of how taxing the system can be for our victims and witnesses,” Kaeo said.
Private attorneys report similar frustrations with the TRO calendar in Family Court in Kapolei. They describe going there with clients, waiting up to several hours and then finding out that the cases are continued for another month.
Even though a TRO already is in place, the hours waiting are unproductive and cost clients money, the attorneys said.
“Parties end up going to court multiple times, spend inordinate amounts of time waiting, and as a result, their legal fees become prohibitive,” attorney Lynne McGivern wrote in an email. She noted, however, that the judges are good about setting aside trial time when the cases eventually are heard.
O’Brien, the psychologist, knows the feeling of being in limbo after repeated court delays.
Her TRO case was continued four times before she and her husband agreed to a protective order. The felony case against him by prosecutors has been continued eight times so far, partly because the two sides were negotiating a plea deal.
“I know everybody is doing the best they can,” O’Brien said. “It just makes me feel hopeless. I feel frozen inside, like I’m just holding on and waiting for something to work.”