Rally planned to support officers charged in teen shooting death

Honolulu police officers plan to rally today in support of three of their own charged with murder and attempted murder in the fatal shooting of a 16-year-old crime spree suspect before their attorneys argue the case should be dismissed, the deputy prosecutor disqualified and that it’s the government’s burden to prove they were not in grave danger when they opened fire.

Officer Geoffrey H.L. Thom, 42, is charged with one count of second-degree murder in Iremamber Sykap’s death. Officers Zachary K. Ah Nee, 26, and Christopher J. Fredeluces, 40, each are charged with one count of second-degree attempted murder.

They are scheduled to appear at 1:30 p.m. in District Court for a preliminary hearing and deliberations over court filings and a motion to dismiss the case.

Prosecutors believe the Hawaii Constitution does not prevent them from charging the officers with second- degree murder and attempted murder after a grand jury declined to indict them.

Deputy Prosecutor Christopher T. Van Marter argued that a 2017 Hawaii Supreme Court decision makes clear that “a complaint and preliminary hearing, indictment, and criminal information are separate, parallel methods by which a felony prosecution may be initiated.”

“Obviously, the district court is a ‘court of law,’ not a ‘court of equity,’ and personal notions about what the law ‘should be’ are more appropriately addressed to the legislature,” Van Marter wrote in response to the officers’ motion to dismiss. “The district court, like all courts and all attorneys, is obligated to follow the law; district courts are not empowered to re-make the law or divine novel theories that undermine, and indeed, overrule other provisions of law.”

The officers were charged June 15, six days after an Oahu grand jury declined to return an indictment after hearing evidence presented by prosecutors.

Richard H.S. Sing, Thomas M. Otake and Crystal K. Glendon, attorneys representing Thom, Ah Nee and Fredeluces, believe the grand jury system protects citizens from the power of the prosecuting attorney.

“To be clear, his argument is that he may not be tried nor punished for attempted second-degree murder absent indictment,” Otake wrote in a July 16 response to Van Marter. “His argument is not about how a case is initiated. His argument, rather, is about whether the State may maintain this case and take it to trial and sentencing”; Van Marter’s actions were “unethical … since the complaining prosecutor is also the advocating prosecutor litigating this case.”

A joint motion filed Monday by Otake argues that prosecutors have to prove that Ah Nee, Thom and Fredeluces were not in danger of death or serious bodily harm when they confronted Sykap, his brother Mark and others as their stolen white Honda Civic sat still on Kalakaua Avenue.

The officers eventually opened fire into the rear and side of the vehicle, killing Iremamber Sykap and wounding Mark Sykap. The officers were told the car was stolen days earlier and that the suspects may be armed and committing violent offenses before the officers engaged in a high-speed pursuit from East Honolulu to downtown.

Legal experts believe the unprecedented proceeding is headed to the Hawaii Supreme Court, where justices will decide whether a prosecutor may bypass a grand jury’s decision and bring charges by criminal complaint.

Megan K. Kau, an attorney, believes the case has torn apart the department and that Otake’s motion Monday essentially outlines what the judge needs to consider and that the state has to prove the officers were not in danger when they started shooting.

“This has never been done in a preliminary hearing, ever,” she said, after reviewing the filing.

“I have police officers calling me asking, ‘So what, I’m going to get charged if I do my job?’ I can’t answer that,” she said.

She reviewed the motions filed in court and told the Honolulu Star-Advertiser the arguments are novel but that a District Court judge cannot dismiss the case based on the current arguments and cannot determine the legislative intent of statutes cited by the defense because an exhaustive review of the laws and their formation has not been introduced. The motions likely will be denied and the case will move forward, she anticipated, before ending up before the high court.

The preliminary hearing could last weeks, she said.

Kenneth L. Lawson, a professor at the University of Hawaii’s William S. Richardson School of Law, told the Honolulu Star-Advertiser the officers should be charged based on the current evidence, but the question is whether prosecutors made a mistake with how they brought those charges.

Murder and attempted murder are high crimes, and the officers are entitled to an indictment, Lawson said. He believes it is unconstitutional for a prosecutor to convene a grand jury, pre­sent evidence without the defense present, decide they don’t like the lack of an indictment, file a criminal complaint and ask a judge to determine probable cause at a preliminary hearing.

“How many bites at the apple do they get?” he said.

On June 25 more than 300 Honolulu police officers, community members, lawmakers and union officials rallied in support of the trio as they made their initial appearance in district court on Alakea Street. A similar rally is scheduled for 12:30 p.m. today on the Hotel Street side of the courthouse.

“Aloha Everyone. Our 3 HPD officers will be at District Court Tuesday at 1:30 for prelim and motion to dismiss. SHOPO is asking us to show support by being at DC (district court) at 12:30. If can, come by to show support and hopefully the case is dismissed,” wrote retired police Lt. Alex Garcia in a message encouraging support for the officers.