Editorial: Legislature must fix crime statute

In the criminal case State v. Obrero, the Hawaii Supreme Court ruled that the law allows a defendant to be charged with serious felonies — among them rape, murder and attempted murder — by only one method: a proceeding in front of a grand jury.

In contrast, Hawaii’s Constitution specifies that charges can be established by either a grand jury hearing, or a judge with a preliminary hearing. Hawaii’s prosecutors had been operating under this assumption for 40 years, but the Supreme Court’s ruling last month put an end to that.

The ruling invalidated hundreds of serious felony cases that were on their way to trial across the islands. Defense attorneys are now calling for the release of defendants jailed in these cases — hundreds of them.

Some could pose a serious danger to the community. Some could be innocent.

All are considered innocent until proven guilty — and have a constitutional right to freedom that should only be taken away under principals embedded in the Constitution and procedures spelled out by law.

Faced with a pileup of cases created by Obrero, Honolulu Prosecutor Steve Alm has vowed to fight on every front to keep those jailed pre-Obrero, in jail. One tactic he’s used is invoking Hawaii’s penal procedure Rule 12(g), which allows judges to hold a suspect in custody for up to 90 days while a new charge is filed.

But the state’s Public Defenders Office has already pushed back, taking the tactic to court — and arguing, persuasively, that holding someone without criminal charges for up to three months violates a person’s constitutional rights.

It’s now time for the state Legislature to fulfill one of its purposes: to enact and refine laws that enhance public safety while preserving individual rights. Given the serious issues involved, the Legislature can and should call an emergency session to clear up the legal issues raised by Obrero, repealing a remnant 1905 law limiting prosecutors’ discretion.

Legislative action wouldn’t clear up the cases thrown into no man’s land by the Obrero ruling. These cases would need to be recharged before a grand jury.

However, repealing the law would restore prosecutors’ discretion to choose between a grand jury and a judge to issue charges. The Obrero ruling has created more demand for grand jury sessions than can be met, at the same time that prosecutors are scrambling to renew charges in cases snagged by Obrero.

A draft bill is circulating among legislators to address the conundrum. It specifies that prosecutors must choose between using a grand jury or a preliminary hearing — eliminating the possibility of “forum shopping” to charge someone with a crime. This is fitting.

Legislators must focus, find common ground, and move on this, for the sake of public safety and to eliminate the uncertainty that now clouds criminal court procedure.

As for the prosecutorial tactic of using Rule 12(g) to avoid releasing suspects: Holding someone in jail for up to 90 days when no legal charges are pending is quite possibly unconstitutional, and extreme on its face.

Prosecutors have other tools to keep a suspect confined while coordinating a grand jury hearing, including seeking to charge them again by way of preliminary hearing, with 14 days then available to keep the defendant jailed until a grand jury can be empanelled.

Prosecutors can also work with the Judiciary to add more grand jury hearings. On Oahu and Hawaii island, an additional day has already been added each week. If this isn’t sufficient to clear the backlog, and this is indeed an emergency, an emergency provision to add more grand jury panels may be called for.

In the end, public safety is the goal. We applaud aggressive efforts by prosecutors to lock criminals up, and defense attorneys’ diligent efforts to protect their clients’ freedoms. Lawyers must follow the path set by law, and this is where our Legislature comes in.