Prosecutors grapple with ‘impossible’ situation after serious criminal charges invalidated

HONOLULU (HawaiiNewsNow) - A Hawaii Supreme Court ruling has inmates in legal limbo — held behind bars even though their charges are no longer valid.

On Oahu alone, prosecutors have identified 160 people who were charged with serious crimes by criminal complaints whose cases now have to go before a grand jury for an indictment.

“It’s got to be a nightmare for everyone involved, the prosecutors, the courts, the police, the witnesses, I mean, it’s next to impossible,” said former Honolulu Police Deputy Chief John McCarthy.

Last week, the high court ruled that the murder case against Kalihi resident Richard Obrero was “unlawful” because he was not charged by a grand jury indictment.

Honolulu prosecutors had charged Obrero by criminal complaint for killing 16-year-old Starsky Willy after Willy and a group of teens broke into Obrero’s home.

An Oahu grand jury previously refused to indict Obrero.

Many of the cases now in limbo involve violent crimes and prosecutors said delays in getting the suspects indicted by a grand jury could jeopardize public safety. They’re asking the state Legislature to pass a new law to preserve their authority to use the criminal complaint process.

But legislative leaders say the state courts — not the state Legislature — need to fix the problem.

“Public safety is paramount,” said House Speaker Scott Saiki.

“The Supreme Court made this decision. And so it’s now up to the Judiciary to accelerate grand jury proceedings in Hawaii. The Judiciary needs to help fix this situation.”

Court officials said they plan to increase the number of grand juries on Oahu and the neighbor islands by about 35% starting this month. But some prosecutors say that’s still not enough.

Meanwhile, defense attorneys said that when they call to get their clients’ cases dismissed, they’re getting stalled by the courts.

“Unfortunately, the courts are setting these cases two or three months down the road,” said attorney Myles Breiner. “I would submit that falls under an illegal detention.”

Breiner said he represents about a dozen people affected by the ruling who are still locked up. He said those clients should be released — at least until a grand jury hears their case.

“It’s deeply disturbing because it sounds like, you know for lack of a better description, that the court got into bed with the prosecutor’s office and said we have this catastrophe and we don’t want to release these individuals,” he said.

Attorney Eric Seitz believes prosecutors should have known better and should have used the grand jury process in the first place.

“I understand they’re dealing with a clamor from people that there’s been a rising crime and we have to crack down on that,” said Seitz.

“But putting people in jail for long periods of time and cutting corners in the process is not the way to answer that problem.”

Putting together a grand jury is not easy.

It requires the state Judiciary to send out jury summons to hundreds of people, bring them to the courthouse, screen for those who cannot serve and assign those who can to potentially multiple days of service. 

It also involves deputy prosecutors, clerks and sheriffs, an independent grand jury attorney advisor to be present and a secure private courtroom for them to meet.

The scramble all stems from the ruling of a three-justice majority from the state Supreme Court last week.

The high court rejected years of practice to rule that all felonies except contempt of court require a grand jury to be set for trial.

The ruling by Justices Sabrina McKenna, Michael Wilson and Todd Eddins is actually contrary to the clear language of the state constitution, which says either a grand jury or a preliminary hearing can establish probable cause that a felony was committed by a defendant.

But the three seized on a failure by the legislature 40 years ago, which did not update the statute to match the constitution. Because an old law was still on the books, the majority found a preliminary hearing and a judge’s finding of probable cause is no longer sufficient to send even a suspected killer to trial.

The three justices don’t dispute that the 40-year-old language in the Hawaii Constitution clearly gives prosecutors two options to charge felonies, but they argue that the legislature’s passage and the voters’ approval of the constitutional amendment for preliminary hearings was not enough. 

They say by failing to rewrite a 1905 statute requiring grand juries essentially trumped the Constitution.

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