Editorial: Resolve snafu on criminal cases

A Sept. 8 Hawaii Supreme Court ruling has forced a hard stop in bringing defendants accused of murder, manslaughter and other serious felonies to trial by way of a judge’s preliminary hearing — causing a major shock to the state’s criminal justice system.

The ruling in State of Hawaii vs. Richard Obero now requires all serious felony cases to pass through a grand jury, to decide whether the case proceeds to trial. It has the effect of voiding charges in more than 160 felony cases awaiting trial on Oahu alone — and may threaten the status of hundreds upon hundreds of other serious felony cases that led to a guilty verdict.

Honolulu Prosecutor Steve Alm has already returned attention to felony cases that were set for trial, starting over with a grand jury. He warns that if people awaiting trial for serious felonies such as murder, rape and armed robbery are released because of the ruling, it poses a threat to public safety on Oahu.

Last week, the Star-Advertiser reported on the abrupt dismissal of Larry Shanks Jr.’s attempted murder trial in the June 2020 beating and burning of a 31-year-old woman who was seemingly left for dead in a Kalaeloa military bunker. On the day of the Supreme Court’s ruling, a judge dismissed the case, ordering that Shanks be released from custody. The next day, however, prosecutors brought the case to a grand jury, which indicted Shanks for attempted murder. He was not released.

“Make no mistake about it, this ruling puts the public at risk,” Alm said in a statement.

Alm and others have asked Gov. David Ige to call a special session of the state Legislature to resolve the conflict between Hawaii’s Constitution and an “overlooked” Hawaii statute that’s causing this turmoil, to allow complaints and preliminary hearings going forward. But there has been pushback.

House Speaker Scott Saiki called on the Judiciary to solve the problem by accelerating grand jury proceedings. And Ige said he doesn’t see the urgency to reconvene the Legislature, saying Wednesday on the Star-Advertiser’s “Spotlight Hawaii” webcast that it’s “premature to talk about a special session.”

That is shortsighted: While a special session would not retroactively settle the pending cases, legislators could immediately repeal the outdated statute, which was “overlooked,” as Alm puts it, when Hawaii’s Constitution was amended in 1982. That would allow prosecutors to resume bringing serious felony cases to a District Court judge for preliminary hearing, rather than setting a grand jury hearing in every case.

The laws that spell out the grand jury requirements are indeed “on the books.” While the Supreme Court’s decision may be legally correct, however, it has not been Hawaii’s intention to follow that remnant law since its Constitution was amended in 1982, specifying that prosecutors could choose between a grand jury or a preliminary hearing with a judge to initiate trial proceedings.

Legal observers speculate that the Supreme Court case could lead to hundreds of motions to dismiss cases against serious offenders, or to reconsider decided cases. And while the Judiciary has already moved to increase the number of grand jury hearings each week, that process is logistically more difficult.

With Ige hesitant, there is another way to bring the Legislature into special session. On Monday, Senate President Ron Kouchi released a statement noting he has heard from prosecutors in all four Hawaii counties, inquiring about just that. Without the governor’s involvement, the more complicated process requires two-thirds of the members of each legislative body to sign a petition asking Kouchi and Saiki to call the session.

“We will fight to keep all these violent offenders in custody until we can charge them again,” Alm said. But with growing public concern over crime in Hawaii, it would certainly help to have Ige and the Legislature in prosecutors’ corner.