High court decision that invalidated scores of felony charges relies on 1905 Hawaii law

HONOLULU (HawaiiNewsNow) - 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.

But now, the Judiciary needs more grand juries. A lot more – and right away.

That’s because of a Supreme Court ruling last week that said all felonies except contempt of court must be charged by a grand jury, eliminating the option of holding a preliminary hearing and getting a judge to agree there is probable cause to go to trial.

Prosecutors have held thousands of felons through preliminary hearings in the 40 years since it was allowed by the state Constitution. City Prosecutor Steve Alm is scrambling to recharge at least 160 felony cases in danger of being dismissed if their cases are not heard by a grand jury soon. “Our no. 1 priority is making sure that violent and dangerous offenders are not released from jail as a result of the Obrero decision,” Alm said, in a statement released by his office.

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

On Thursday, Alm’s office announced the dismissal of first-degree murder charges in the killing of an Ewa Beach woman and her baby. Kendall R. Ramsey, 24, was originally charged in 2020 with stabbing his 23-year-old girlfriend and infant son in Ewa Beach.

Also Thursday, prosecutors took their evidence in Ramsey’s case to a grand jury and got an indictment for the same charges and within the same hour asked the court to dismiss the 2020 case.

It was a tactic that prevented the possibility of Ramsey, who is being held without bail, from getting his case dismissed by a judge and then being released while waiting for time in front of a grand jury.

Ramsey’s probable cause finding was through the preliminary hearing process.

That will likely be the strategy for prosecutors in scores of other cases in the next few months that were charged the same way.

The Obrero case decision was made by a three-justice majority of the state’s high court.

The three rejected 40 years of practice in their ruling, seizing on a failure by the Legislature in the 1980s to clarify the law.

The ruling set off an outpouring of outrage from county prosecutors, who are seeing the likelihood of scores of felony cases being dismissed ― and potentially dangerous suspects released.

Chief Justice Mark Recktenwald, who is also the chief executive of the Judiciary branch, said through a spokesman that the department had an emergency meeting the day after the ruling was issued and decided it must respond by forming additional grand juries to take on the cases that had previously been set for trial by a judge at a preliminary hearing.

It’s not clear whether that emergency scenario played a role in Recktenwald’s thinking when he opposed the conclusions of the court majority. In his dissent, joined by Justice Paula Nakamura, he wrote, “The Majority’s novel interpretation of the constitution departs from 40 years of settled law and needlessly frustrates the framers’ intent.”

On Wednesday, the Judiciary announced the formation of additional grand juries and will also hold more sessions in every county.

In their majority opinion, the three justices didn’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 that because the lawmakers neglected to rewrite a 1905 statute that required grand juries, the law on the books (though dated) essentially trumped the Constitution.

In his dissent opposing the majority, Recktenwald argued that the more than 100-year-old statute was not only obsolete, but that it was essentially repealed by the change to the constitution in 1982.

Alm and other county prosecutors called for special legislative session to make a quick change to the 1905 statute that the majority focused on. They point out the Constitution already provides the preliminary hearing option so the law could be changed to reflect that; or simply be repealed to let the Constitutional language stand.

But with the 2022 general election less that two months away and because a special session would take at least five working days; state House Speaker Scott Saiki says, for now, this is a problem the judiciary made for itself and will have to deal with.

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