Prosecutors and lawmakers split on need for immediate fix to felony charging law

The Hawaii State Judiciary is increasing grand jury panels in each county to deal with an influx of cases in the wake of a recent Hawaii Supreme Court ruling that preliminary hearings before a judge do not suffice for bringing charges in cases involving serious felonies, including murder.

But while a special session of state lawmakers for a legislative fix seemed unlikely as of Saturday, prosecutors say they will continue to push for one.

County prosecutors have maintained that public safety is jeopardized by the Sept. 8 high court decision, and that nearly 400 felony cases statewide are affected. But they have yet to persuade legislators and Gov. David Ige that immediate legislative action to revise state law is needed and to call a special session of the Legislature.

State Sen. Karl Rhoads, chair of the Senate Committee on the Judiciary, said he doesn’t think a special session is necessary. Prosecutors still have the opportunity to seek a grand jury indictment if prohibited from presenting certain cases for a preliminary hearing in District Court, he said, and the idea that scores of suspects may be released because of the State v. Obrero ruling is “incorrect.”

“I believe the idea that people who have already been convicted are going to be released because of the Obrero decision is incorrect. Hawaii Supreme Court came down with another related decision on Sept. 16, which says that if you didn’t raise the Obrero issue before appeal, they will presume that the charging process was valid,” said Rhoads, an attorney. “What this means in practice is that they aren’t going to let this be retroactive and allow every convicted felon from the last 40 years to challenge their convictions just because they were charged under the complaint procedure.”

Rhoads said the Judiciary will need to further expand grand jury panels, but they “had to know this was going to be a consequence of (the court) decision.”

Prosecutors have been prioritizing getting new indictments against suspects in the affected felony cases to prevent their potential release into the community.

On Oahu, 168 felony cases are in “serious jeopardy,” according to Prosecuting Attorney Steve Alm, including 25 murders and attempted murders, more than 40 robberies and “numerous” sex assaults, kidnappings and arsons.

“The Hawaii Supreme Court upended 40 years of settled practice, and defied the will of the Legislature and the voters, when it ruled that charging violent and dangerous offenders by way of complaint and preliminary hearing is unlawful,” said Alm. “All of our pending cases that were charged using this method will now need to be taken to grand jury for indictment, putting a severe strain on an already overburdened grand jury system.

“While we appreciate the Judiciary adding one extra session of grand jury per week … this is nowhere near enough for us to work through our backlog of cases affected by Obrero and keep up with new cases that need to be indicted.”

The Hawaii Supreme Court ruling has “created a major threat to public safety and indicting these defendants to keep them in custody is our No. 1 priority,” Alm added.

The current grand jury will expire at the end of the year. The Judiciary traditionally impanels a new grand jury in late January, leaving a three-week window when prosecutors will be unable to charge serious felonies, Alm pointed out. That could mean that suspects in serious felonies during that period will have to be released since they cannot be charged, he said.

Lawmakers and Ige disagree that the ruling requires a special session, and the governor said he isn’t going to unilaterally convene the Legislature.

Senate President Ron Kouchi and Ige told the Honolulu Star-Advertiser Friday that a special session is unlikely.

Saiki on Saturday said that if Ige does not call the Legislature back into session, the House and Senate would each need two-thirds of their members to agree to come back to the state Capitol to work on a fix.

“We are currently polling House members and are awaiting word whether the Senate has the requisite support since the Senate would also be required to vote on judicial nominations and the governor’s interim appointments to boards and commissions,” said Saiki.

Consensus lacking

County prosecutors have been working with Rhoads and his office on a draft bill since shortly after the Supreme Court decision came down, but there is no agreement in the Senate or House on what any proposed legislation would look like.

Ige has said that without consensus on a bill, he would not call the Legislature back into session.

“Any new legislation would be prospective only, so I don’t see the sense of urgency to try to implement a change. Until we have consensus on what changes would be necessary, I believe it’s premature to talk about a special session,” Ige said Friday.

Hawaii County Prosecuting Attorney Kelden Waltjen said the decision to hold off on a special session is “truly disappointing.”

“I really don’t think that the Legislature understands the seriousness or the urgency to address this now, nor the public safety concerns that are being created by their inaction,” said Waltjen.

In Hawaii County, 220 pending felony prosecutions may be subject to premature dismissal based on “a technicality and legislative oversight,” he said, and not upon the merits of the each case. These dismissals could result in the release of violent suspects, he said.

Since the ruling, some District Court judges are questioning prosecutors’ authority to initiate felony criminal cases via complaint and preliminary hearing in District Court.

On Sept. 8, a Kona district court judge struck from his calendar three felony cases that were charged via complaint, finding that the court lacked jurisdiction to hear the cases.

“If that position is adopted by other District Court judges, suspects facing charges that (cannot be brought by criminal complaint) will have to be released pending investigation until a grand jury can be convened,” Waltjen said.

These charges include but are not limited to murder, kidnapping, robbery, sexual assault, terroristic threatening, assault against a law enforcement officer, promoting child abuse and all Class A felonies, according to Waltjen.

“Police and prosecutors may be forced by the court to release alleged murderers, rapists, armed robbers and those accused of the most serious offenses until a grand jury session is available,” he said.

On Kauai, Prosecuting Attorney Rebecca Like said 15 felony cases are at risk of dismissal based on the Obrero ruling. She said her office is in “strong favor” of a special session to repeal or amend Hawaii Revised Statutes 801-1, which mandates that “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.”

Like said the Obrero decision “has caused a lot of confusion amongst judges and attorneys, especially in regards to new protocols needing to be implemented immediately.”

With only two grand jury sessions being held monthly on Kauai, the prosecutor said there will be too many existing and new serious felony cases to be handled in a timely manner.

“In theory it may sound manageable to go to grand jury immediately after preliminary hearing, but the practical realities are far more complex and impractical, increasing the risk of dismissals and unnecessary trauma for victims and witnesses being forced to testify multiple times,” Like said.

Increase in panels

When the Obrero ruling came down, the Judiciary was in the process of expanding its grand jury system, either by increasing the number of grand jury sessions or grand jury panels, or both.

The changes have included increasing the number of panels for Oahu’s 1st Circuit from six to eight starting this month, with the two additional panels convening every other week.

Additional grand jury sessions will be added starting Monday, increasing the number of sessions held from three to four each week, according to Andrew Laurence, public information and program specialist for the Judiciary.

Grand jury sessions for Maui County’s 2nd Circuit increased from three to four per month, with the additional session to be held every Friday through December.

In 2023, an additional grand jury will be impaneled, for a total of four 2nd Circuit panels, according to Laurence. At least one panel will convene each week.

The 3rd Circuit on Hawaii island is now convening four grand jury sessions per month, up from three previously. Hilo will continue to hold two grand jury days each month, while Kona will hold an additional grand jury day starting this week.

One grand jury session will be held weekly until December, with additional grand juries to be impaneled in 2023. The total number is “to be determined,” according to Laurence.

Kauai’s 5th Circuit has increased from one grand jury session per month to two.

Each grand jury session includes compensation for individual grand jurors and for the attorney serving as independent grand jury counsel to advise the members of the grand jury on matters brought before them, Laurence said. The total costs for the grand jury expansion have not been determined, he said.

The increase in grand jury availability isn’t enough to satisfy the concerns of county prosecutors in the wake of the Obrero ruling. And despite Friday’s statements by the governor and Senate president, Alm maintains that an immediate fix is needed. He said he will continue to join his fellow county prosecutors in pushing state leaders to get it done as soon as possible.

“A special session addressing this issue would have an immediate positive impact on public safety by restoring the use of preliminary hearings to charge serious felonies,” said Alm. “This will relieve the pressure on the already overburdened grand jury system and will dramatically reduce the chances of violent and dangerous offenders being released into our communities.”

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State of Hawaii v. Richard Obrero

The Hawaii Supreme Court’s 3-2 ruling on Sept. 8 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 reportedly harassed Obrero by trespassing on his property on Kula Kolea Drive near Kalihi Valley Homes and firing BB guns at him and his house. 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 Honolulu prosecutors persisted and took the case to a preliminary hearing in District Court, where a judge found probable cause to charge Obrero with second-degree murder, attempted first-degree murder, three counts of attempted second-degree murder and a firearm offense.

The high court essentially ruled that a grand jury’s decision not to indict a criminal suspect cannot be sidestepped by prosecutors through other charging mechanisms.