The Hawaii Supreme Court issued an opinion Thursday in Deangelo v. Souza, which allows courts to continue to order the jailing of people without charges in what are loosely known as “Obrero” cases, but appears to discourage the 90-day maximum hold in favor of 60 days.
Honolulu Prosecutor Steve Alm is pleased with the decision, calling it a common-sense balancing of a defendant’s rights with public safety. But defense attorneys say it fails to uphold the constitutional rights of people who are being jailed for months without charges, and fear the opinion opens the door to abuse.
A Sept. 8 decision by the same high court in State v. Obrero caused an uproar by allowing the dismissal of hundreds of certain types of felony cases, which had been charged by preliminary hearing and a judge finding probable cause — a practice in place in Hawaii for 40 years — rather than by grand jury indictment.
The Obrero decision prompted prosecutors across the state to ask judges to hold defendants for up to 90 days, although in some cases 60 days, until defendants are indicted.
They successfully used Rule 12(g), which allows a judge who dismisses a case based on a defect in the charging of the case to hold a defendant for a specified time while the state recharges the case.
Scott Deangelo’s murder case was one of the first such cases in which a judge dismissed the case based on Obrero, then ordered him jailed for up to 90 days without bail.
”We are disappointed that the Supreme Court believes it is constitutional to incarcerate a person who has not been charged or convicted,” said Deputy Public Defender Jon Ikenaga, who petitioned the high court Oct. 16 in Deangelo v. Judge Kevin Souza.
“The vast majority of recent case dismissals have been due to the prosecutor disregarding statutory and case law requirements in charging. Holding our clients in custody due to the prosecutor’s errors is unfair and unjust.”
Ikenaga said his office sought clarity on the practice, saying Rule 12(g) is unconstitutional and violates the Fourth Amendment, which protects unreasonable seizures, and cites state law that requires an arrested person to be taken before a judge for examination within 48 hours after arrest.
The Deangelo opinion says that Rule 12(g) is a procedural rule, and does not override a substantive right or violate the Fourth Amendment. In Deangelo’s case, probable cause was established, and he was charged via complaint and a preliminary hearing. The dismissal was merely due to the defect in how the case was initiated.
However, the Deangelo opinion does not provide a limit, only saying that several states have adopted a range from one to 60 days and that some states have said a specified time must be reasonable.
Criminal defense attorney Myles Breiner said, “I’m frankly disappointed by what I read.”
“If a charge is dismissed and the person is dismissed, they have no remedy. They sit in jail, uncharged under the guise of public safety.”
He said the opinion fails to put a limit on how long they can hold someone without charges and merely says that a judge can do what is reasonable.
“What are those rules and is there a cap? It’s just a recommendation here. There is no cap. It’s guidance without creating a line in the sand.
“For the court to opine that half the states do and half the states don’t, that 60 days is reasonable and 90 days is not, is arbitrary and capricious.”
“In France it’s unlimited. You can be held uncharged for years that you are in custody.”
He said the danger is that a judge may be unreasonable, and “it could encourage law enforcement to lock persons up with no charges. I see it being abused.”
The Supreme Court did not rule on the 90-day hold, saying, “Since the State indicted Deangelo before the 12(g) order expired, we do not find it necessary to determine whether the circuit court abused its discretion in specifying 90 days.”
Souza, who made the ruling in the Deangelo case, declined to respond to the petition before the Supreme Court and did not respond to a request for comment from the Honolulu Star-Advertiser on Thursday’s decision.
The backlog is a serious concern, and 92 defendants on Oahu were in custody as of Oct. 31 who were affected by the Obrero decision, not all in Class A or Class B felonies.
They range from 22 alleged murder or attempted murder cases down to one attempted second-degree theft.
Alm said, “We will do our level best to have cases dismissed under Obrero indicted within 60 days.”
But he will prioritize incoming cases first for grand jury indictments.
He said that his office brought down 174 cases affected by Obrero to 130, and now just 92 are in custody. Some were indicted; others have plea agreements.
The Judiciary has added another grand jury session during the week for a total of four on Oahu.
Alm said there could be a three-week gap when the 2022 grand juries are released until new 2023 juries are empaneled.
The Judiciary said there will be no gap since some grand juries were empaneled later in January 2022, and they must serve a full year.
The state Legislature failed to convene a special session to address Obrero.
Jacob Aki, Senate communications director, said it appears from the Senate side that the Legislature will wait until next session, which begins Jan. 18, to deal with Obrero. “The Judiciary chair is in conversations with relevant stakeholders, county prosecutors, to come up with a bill to address the Obrero concern,” he said.
