A grand jury’s decision not to indict a criminal suspect cannot be sidestepped by prosecutors seeking alternatives to charging major crimes such as murder, the Hawaii Supreme Court has ruled.
Thursday’s 3-2 ruling put a stop to the prosecution of Richard Obrero, 53, who was charged with murder Nov. 12, 2019, after he allegedly shot and killed 16-year-old Starsky Willy of Honolulu.
Willy was part of a group of four teens who allegedly harassed Obrero by trespassing on his property and firing BB guns at him and his house on Kula Kolea Drive near Kalihi Valley Homes. The public housing complex abuts Obrero’s property.
Two days after Obrero was charged with killing the teen, an Oahu grand jury declined to return a true bill of indictment, indicating that prosecutors failed to present sufficient evidence for the grand jury to believe the defendant probably committed the crimes.
But prosecutors persisted and charged Obrero anyway with second-degree murder, attempted first-degree murder, three counts of attempted second-degree murder and one count of a firearm- related offense.
“It (the grand jury) did not think there was probable cause to believe Obrero committed any of the charged crimes. And it voted against allowing the State to subject Obrero to the indignity, expense, and stigma of a criminal prosecution,” wrote Associate Justice Todd Eddins in the majority ruling.
“The State was undeterred. On the afternoon of November 14, 2019 — just a few hours after the grand jury returned a no bill — the State made its case again, this time at a preliminary hearing before the district court. The hearing was continued to the next day; when it concluded, the district court — unlike the grand jury — found there was probable cause to charge Obrero” and sent the case to Circuit Court.
Prior to 1982 the Hawaii Constitution was identical to the U.S. Constitution in requiring grand jury presentments or indictments for felony prosecutions, according to Eddins. But a 1982 amendment to the state Constitution rolled back the requirement for a grand jury indictment in felony prosecutions.
In asking that his case be dismissed in July 2021, Obrero’s attorneys argued that prosecutors violated state law by using the complaint and preliminary hearing process to prosecute him. The particular law in question, Hawaii Revised Statutes 801-1, says, “No person shall be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictment or information, except for offenses within the jurisdiction of a district court or in summary proceedings for contempt.”
Obrero’s attorneys said his felony charges didn’t fall “within the jurisdiction of a district court” and could not be charged by “information” — a formal charging document that describes the factual basis for criminal charges against a suspect — because that path is available only for “certain Class B and C felonies,” according to the Supreme Court opinion.
The defendant argued that he is a person who shall not “be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictment,” according to the opinion.
“We agree,” Eddins wrote. “Obrero isn’t charged with contempt. And the felonies he’s charged with are neither within the jurisdiction of the district court nor chargeable by information. … So Obrero is a person who shall not ‘be subject to be tried and sentenced … in any court, for an alleged offense, unless upon indictment.’”
Thursday’s ruling roiled county prosecutors, who claim it jeopardizes a critical tool used to bring dangerous felons to justice. Defense attorneys hailed the ruling as a long-needed affirmation that the most serious criminal offenses cannot be charged without a true bill from a grand jury.
Honolulu Prosecuting Attorney Steve Alm said he was “disappointed” by the high court’s ruling and that he will look to state lawmakers to pass legislation overturning the order.
“In 1982 the Legislature and the citizens of the State of Hawaii voted to amend the state constitution and allow prosecutors to charge felony offenders by way of complaint and preliminary hearing. This ruling defies the will of the public, and basic common sense, by giving life to a defunct statute from 1905 that was inadvertently left on the books,” Alm said Thursday. “We will be asking the Legislature to pass a bill overturning today’s decision so that the important work of prosecuting dangerous felons can continue as intended by the people of Hawaii.”
Obrero’s attorney, Thomas Otake, said he first raised the issue over a year ago in the case of three Honolulu police officers charged with murder after a grand jury declined to return a true bill in the shooting death of Iremamber Sykap, 16, who was killed by police following a high-speed chase through the streets of Honolulu.
Oahu District Court Judge William Domingo determined there was not enough evidence against the officers in the Sykap case to continue the state’s prosecution.
According to Otake, prosecutors have been getting away with dodging grand jury decisions, and Thursday’s ruling “puts an end to this unlawful practice.”
Following the Sykap case, “the prosecutors had notice that there were issues with their practice of circumventing the grand jury by charging felonies through complaint,” he said. “They had over a year to adjust but instead they continued to bring case after case through complaint. Any backlog that creates due to the need to now take all of those cases from the last year back to the grand jury is entirely their own fault. If they had objectively analyzed the issue when I first raised it, they could have started to fix the problem over a year ago.
“To be clear, blame for any temporary chaos this ruling creates in the system should be placed on the prosecutors for getting it wrong for so long, not on the Supreme Court for now getting it right,” Otake said. “The grand jury system was meant to be a check on the immense power of the prosecutor. For decades, prosecutors in Hawaii have unlawfully circumvented the requirement of a grand jury indictment in the most serious of cases. Mr. Obrero’s case highlights what can happen when the power of the prosecutor is not regulated by the Courts or the people. After a panel of citizens said loud and clear that criminal charges should not be brought against him, the Prosecutor proceeded anyway.”
Obrero remains free since posting bail in 2019.
Hawaii County Prosecuting Attorney Kelden Waltjen said in a statement that his office is “extremely disappointed” in the high court’s decision in the Obrero case. The ruling contradicts “established criminal law practices and procedures which have been in place in Hawaii for the past forty years.”
On Hawaii island, grand jury opportunities come only three times a month — twice per month in Hilo and once per month in Kona, he said.
“It also disregards the intent of voters, interferes with law enforcement, and jeopardizes public safety. The decision impedes the commencement of criminal proceedings in arrest and charge situations for serious cases, including but not limited to murder, kidnapping, robbery, domestic violence, drug trafficking, and sexual assault,” Waltjen said. “As a result, offenders may be released until prosecutors are able to proceed via information charging or schedule a grand jury presentation.
“To make matters worse, not all criminal charges are eligible to be initiated via information charging and opportunities for grand jury presentation are limited.”
Waltjen said he agrees with the dissenting opinion of Chief Justice Mark Recktenwald, which says the majority ruling “reaches a result that neither the legislature nor the electorate ever intended.”
Kauai Prosecuting Attorney Rebecca Like said her office has been planning for the possible implications of the Obrero case since oral arguments took place and is talking to other county prosecutors and the state Department of the Attorney General.
“We are also actively discussing with stakeholders on Kauai how the ruling will impact law enforcement operations and case processing in our circuit,” Like said.
Gary Yamashiroya, special assistant to state Attorney General Holly Shikada, said the department is reviewing the high court’s opinion and working with county prosecutors “to determine next steps.”
As far as seeking legislative relief to Thursday’s ruling, state Sen. Karl Rhoads, chair of the Senate Committee on the Judiciary, said he is sure lawmakers will “look at a fix in January,” when the 2023 session starts.
“I’m just saying, they tried to indict Obrero and failed,” Rhoads said. “That is unusual and makes me wonder how strong that particular case was.”
Correction: Honolulu Prosecuting Attorney Steve Alm stated the Oahu grand jury meets only two days a week instead of the previous three before the COVID-19 pandemic, and that the number of panels had been reduced. The state Judiciary clarified that although separate panels of the grand jury meet only two days a week, there are three sessions weekly, with two held Fridays, which is the same frequency as before the pandemic. Additionally, there are six grand jury panels, the same number as prior to the pandemic.
