The Honolulu District Attorney’s Office is asking the Legislature to meet in special session and draft new legislation that would reverse a recent Hawaii Supreme Court ruling that limits prosecutorial choices when charging criminals serious.
Honolulu’s first deputy district attorney, Thomas Brady, told a west Oahu community group last week that the court’s ruling bars prosecutors from pursuing serious felony charges using preliminary hearings before a court. judge and ruled that a grand jury must hear each case before bringing a defendant to trial. Brady said 168 convicted felons could use the ruling to quash their cases.
“I want you to know that there was a ruling by the Supreme Court of Hawaii on September 8 that invalidated our way of charging cases by way of preliminary inquiry,” Brady said. “It was based on 40 years of practice which was a constitutional amendment that allowed us to go to the preliminary inquiry.”
In the case of State V. Richard Obrero, the court ruled 3 to 2 that Section 801-1 of the Revised Laws of Hawaii requires a felony (murder, robbery, sexual assault) prosecution by indictment by a grand jury. The court ruled that the lawsuits against Obrero were unconstitutional and that the complaint should be dismissed.
“We are asking for a special session so lawmakers can step in and correct this decision by law. We’re not getting a lot of traction,” Brady said. “I don’t want to see someone violent released because of the new case law that’s come out.”
“The net result is that we have 168 felony cases already indicted in the system that are currently struck down and what we need to do is rush to go to a grand jury to deal with these cases so that no one be released. With HPD support so far so good. No one has been released yet,” Brady said.
Brady was speaking at a town hall meeting about rising crime on western Oahu hosted by city council member Andria Tupola. Brady urged residents to contact their elected representatives to support a special session.
Hawaii’s judiciary now plans to increase the number of grand jury panels statewide to comply with the ruling.
In Oahu, according to the court system, the panels would increase from six to eight, starting in September, with the two additional panels meeting every two weeks. Additional grand jury sessions will be added beginning September 26. This will increase the number of sessions held from three to four each week.
Maui County will add two grand jury sessions per month, which will be held every other Friday. Grand juries will meet once a week throughout 2023.
The grand jury session in Hawaii County would be increased from three to four per month. Hilo will continue to hold two grand jury days each month. Kona will host another Grand Jury Day each month, starting September 26.
For Kauai County, grand jury sessions will increase from one to two per month. From September onwards.
Senate President Ronald D. Kouchi released a statement Monday saying he had received requests from prosecutors for a special session.
“The Senate has been notified of the concerns of four county prosecutors regarding the potential impacts raised by the opinion of the Supreme Court of Hawaii in State v. Obrero and we are in cchat with our membersour House colleaguesand the judiciary, at assess appropriate next steps,” Kouchi said.
The court ruling detailed the sequence of events:
On November 7, 2019, Obrero fired a gun at several individuals, resulting in the death of a minor. The same day, the state arrested Obrero for the minor’s death. On November 12, 2019, the state filed six single-counter complaints against Obrero. The First Circuit District Court (District Court) scheduled Obrero’s preliminary hearing for the afternoon of November 14, 2019. On the morning of November 14, 2019, the state requested an arraignment by a grand jury against Obrero for the offenses included in the complaint, as well as three additional offenses.
However, the grand jury refused to issue a true bill on all of the offenses. That afternoon, the state conducted the preliminary investigation. At the conclusion of the hearing, the district court found probable cause for the six offenses included in the original complaints and remanded the case to the Circuit Court of the First Circuit (short circuit).
Although the state cannot prosecute Obrero via the constitutionally invalid complaint, the state is not without other avenues to seek the prosecution of an individual after a return without an actual indictment. Obrero concedes that “the return of a grand jury panel of a non-bill [does not] automatically terminate criminal proceedings. However, Obrero argues that “due process should require the state to demonstrate, once a grand jury has returned a non-bill, that any subsequent indictment[. . . ]. . is based, at least in part, on additional evidence[.]“Obrero is right.
The court found that the state could not subject Obrero to trial and conviction without indictment by a grand jury and reversed the circuit court’s denial of Obrero’s motion to dismiss. The decision says that if the legislature wants to “deprive people of the grand jury protections afforded by HRS § 801-1, it is free to do so.”
A dissenting opinion by Chief Justice Mark E. Recktenwald stated that “the 1982 amendment was clearly intended to sweep away the grand jury requirement as the only method of prosecuting crimes. The fact that an outdated law was left on the books should not thwart the text of the Constitutional Amendment and the will of the voters and legislative supermajorities that passed it.