Hawaii lawmakers are drafting bill to create more ways to charge serious felonies

State lawmakers are working on a bill that would give prosecutors more than one way to charge serious felonies after a Sept. 8 Hawaii Supreme Court ruling that preli­minary hearings are not a lawful method for charging major crimes, including murder, robbery and sex assault.

State Sen. Karl Rhoads, chair of the Senate Committee on the Judiciary, told the Honolulu Star- Advertiser that he has a draft bill that he will share with Rep. Mark Nakashima, chair of the House Committee on Judiciary and Hawaiian Affairs.

“My goal is to return to the process we had in place before Obrero was decided. That is, allow for two paths to charge the most serious crimes, hearing before a judge followed by a criminal complaint, or taking the case to a grand jury for indictment,” said Rhoads. “Because of Obrero, prosecutors currently only have the grand jury option.”

In the State v. Obrero decision, the Supreme Court justices ruled 3-2 that prosecutors who fail to obtain a grand jury indictment against a suspect cannot rely on information charging through a preliminary hearing to file felony charges.

County prosecutors are unified in their position that public safety is put at risk by the high court decision, and that nearly 400 felony cases statewide are affected. Prosecutors are pushing state lawmakers and Gov. David Ige to convene a special session of the Legislature to address the issue.

Any case charged through the preliminary hearing process will have to be recharged through a grand jury proceeding or the suspects could be released, prosecutors say.

“For our office, we have 160 serious felonies … we are going to have to get the witnesses, get the victims, to go to grand jury now, even though we had already done a preliminary hearing,” Honolulu Prosecuting Attorney Steve Alm said on the Star-Advertiser’s “Spotlight” webcast on Monday.

A special session of the Legislature may be unilaterally convened by the governor, or if two-thirds of the House and Senate agree it is needed. Last week, both Ige and Senate President Ron Kouchi said a special session was not likely.

However, in a letter to Kouchi and all House members Monday obtained by the Star-Advertiser, House Speaker Scott Saiki wrote that over two-thirds of House members have agreed to convene a special session to address the State v. Obrero decision.

“I have asked Representative Mark Nakashima to work with Senator Karl Rhoads to jointly propose a bill that can be acted upon,” wrote Saiki. “Moreover, to minimize immediate impact of the Hawaii Supreme Court’s decision, the House proposes that the special session convene as soon as possible. I will forward a proposed special session schedule for your review. As you know, public safety is of paramount importance to the House and Senate. The general public wants the Judiciary and the Legislature to resolve this matter. I will work with you and the Judiciary to determine our best course of action.”

Kouchi told the Star- Advertiser in a statement Monday that now that the House has “finally communicated an interest in convening a special session,” he will formally re-engage with members to determine if the Senate also has the two-thirds majority needed to convene.

“Finding consensus with our House colleagues and the four county prosecutors on language for a proposed bill that will address the issues raised in State v. Obrero will be critical in determining our next steps,” Kouchi said.

Ige’s position on a special session has not changed.

“It is premature to call a special session until there is consensus on a bill to address the issue,” said Cindy McMillan, Ige’s communications director. “If the House and Senate reach an agreement and convene in special session, the governor would make a decision to sign or veto any measure passed following the appropriate legal review.”

While lawmakers work to reach consensus on a plan of action, the Hawaii State Judiciary is increasing grand jury panels in each county to deal with affected cases created by the ruling.

“The Judiciary takes no position on the convening of a special legislative session regarding the Supreme Court opinion in State v. Obrero,” Jan Kagehiro, communications and community relations director for the Hawaii State Judiciary, told the Star-Advertiser.

Rhoads said he still does not believe a special session is needed.

If lawmakers did convene and finished a special session a backlog of cases caused by the Obrero ruling would still exist, he said. By the time Ige signed a bill, all the high-priority cases will have been put in front of a grand jury and recharged by indictment. Also by that time, the Judiciary should have more grand jury panels up and running and can take care of the lower-priority cases without seeking a criminal complaint from a judge, he said.

“Bottom line is, the people that deserved to be charged are going to get charged whether we go into special session or not,” Rhoads said. “I’m not opposed to having a special session, I just don’t think it matters. It won’t hurt anything, well, except the expense of bringing the House back into session. The Senate is going back in in a few weeks anyway, to confirm judges.”

The high court ruling stopped 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.

Obrero’s attorney, Thomas M. Otake, told the Star-Advertiser that he does not believe a special session is required. The “purported need” is the direct result of the Honolulu Prosecutor’s Office mishandling Obrero’s case.

The Supreme Court’s Sept. 8 opinion flows from then acting prosecutor Dwight K. Nadamoto’s decision to pursue the case against Obrero after a grand jury failed to indict, he said.

“It was that misguided action that brought about this ruling in the first place,” Otake said. “Further, this issue was first brought to the attention of the Honolulu Prosecutor’s Office over a year ago, well before the 2022 legislative session. They ignored the issue, continued to bring cases by preliminary hearing, and made no attempt to address it in the 2022 legislative session earlier this year.

“Now Mr. Alm claims that a costly special session should be convened to remedy the mess his office single-handedly created. Instead of bad-mouthing the Supreme Court, there should be reflection on how his office is the one truly at fault.”