When domestic violence victims fail to appear in court in response to subpoenas, Oahu judges in the past would issue warrants for their arrest.
State judges in the 1st Circuit are no longer granting prosecutor requests for bench warrants when subpoenaed victims — usually women — fail to show up at one of the multiple hearings that precede trials for the alleged abusers, according to court officials and prosecutors.
The change reflects what has been a long-standing disagreement between Oahu judges and prosecutors on whether victims need to appear at every court hearing in misdemeanor abuse cases.
Once the suspect is arraigned, it’s not uncommon for cases to be continued multiple times before trial, sometimes because the defense isn’t ready to proceed.
Yet Honolulu prosecutors like to have the victims there each time, saying their presence boosts the chances of getting a plea bargain.
Prosecutors even want the victims to show up — or, for the more reliable ones, be on call — during Monday morning calendar call sessions when prosecutors know no trials will be held that day. During the sessions, trial dates are scheduled for later that week and beyond.
The victim’s presence sends a clear message to the defense that the prosecution is ready, and that signal can persuade defendants to reach a plea deal, sometimes on the eve of trial, prosecutors say.
“The only way they believe we’re ready for trial is if they see that victim’s face,” said Tiffany Kaeo, deputy prosecuting attorney and head of the office’s domestic violence felony division.
But judges, while noting the difficult job prosecutors face, have decided to push back, heeding years of victim complaints about the trauma, frustration, expense and inconvenience resulting from having to go to court repeatedly.
Victims say being forced to see their alleged abusers multiple times in court is traumatic enough, but the repeated times they have to show up typically means having to take off work, arrange for child care or deal with other hassles, such as downtown parking. If a child is the victim, the repeated court trips are even more traumatic, advocates and judges say.
“It is just not fair to all involved, particularly the complaining witness (victim), for them to be forced to come” to every session, Judge R. Mark Browning, the chief and administrative judge for the 1st Circuit, which encompasses Oahu, told the Honolulu Star-Advertiser. “The complaining witnesses become so frustrated that they refuse to come after a while.”
If a bench warrant were issued, the victim would be arrested and brought to court in chains, Browning added. “I don’t think that addresses the issue, and further victimizes the individual.”
Browning in early May informed prosecutors of the change and another one involving domestic abuse cases.
He told them Oahu judges would no longer be granting prosecutor requests to orally order victims who showed up for court that day to attend the next scheduled hearing.
Prosecutors prefer judges to issue verbal orders, saying such directives can be more effective than the prosecutor’s office serving subpoenas compelling them to return. Uncooperative victims often will try to avoid being served or can’t be located, prosecutors say.
The court orders also protect victims, who can tell people they are being compelled to testify and are not doing so voluntarily, prosecutors say.
But Browning said judges aren’t responsible for doing what prosecutors already have the power to do.
Browning said he has been telling Honolulu prosecutors for years that victims should not be forced to attend each court event. Prosecutors know better than anyone when a trial is going to start and should use that knowledge to determine when to subpoena victims, he said.
But prosecutors “refused to back off,” according to Browning.
“We’ve been trying it their way for years, and we know from the data it doesn’t work,” the judge told the Star-Advertiser, referring to low convictions rates Honolulu prosecutors have for domestic abuse trials.
But prosecutors say the changes and another one implemented several years ago limiting prosecutor-requested continuances will lead to more dismissals and make securing convictions harder.
“In domestic violence cases, we as prosecutors often feel like we’re not just fighting against the defense attorney, the defendant and the (uncooperative) victim, but the judges, too,” said Jeen Kwak, deputy prosecutor and chief of the misdemeanor and traffic division.
Nanci Kreidman, chief executive of the Domestic Violence Action Center, applauded the court for halting bench warrants for abuse victims. “This is very good,” she said.
Word of the change has spread from the courtrooms.
“People in the gallery, people outside in the hallway are all hearing this and realizing that they don’t have to do anything when they get a subpoena,” said Kaeo, the deputy prosecutor.