The Hawaii Supreme Court decision puts prosecutors on notice

Sept. 10 — Thursday’s 3-2 decision ended the prosecution of Richard Obrero, 53, who was charged with murder on Nov. 12, 2019, after he allegedly shot and killed 16-year-old Starsky Wiley of Honolulu.

A grand jury’s decision not to indict a suspect cannot be overridden by prosecutors seeking alternatives to charging major crimes such as murder, the Hawaii Supreme Court has ruled.

Thursday’s 3-2 decision ended the prosecution of Richard Obrero, 53, who was charged with murder on Nov. 12, 2019, after he allegedly shot and killed 16-year-old Starsky Willy of Honolulu.

Willy was part of a group of four teenagers who allegedly harassed Obrero by trespassing on his property and firing BB guns at him and his home on Kula Kolea Drive near Kalihi Valley Homes. The public housing complex abuts Obrero’s property.

Two days after Obrero was indicted in the teenager’s murder, an Oahu grand jury declined to return a true indictment, indicating prosecutors failed to present enough evidence for the grand jury to believe the defendant likely committed the crimes.

But prosecutors persisted and charged Obrero anyway with second-degree murder, attempted first-degree murder, three counts of attempted second-degree murder and one count of a firearm-related offense.

“It (the grand jury) did not believe there was probable cause to believe that Obrero committed any of the crimes charged. And it voted against allowing the State to subject Obrero to the humiliation, expense and stigma of a criminal prosecution,” he wrote. Associate Justice Todd Eddins in the majority.

“The State was undeterred. On the evening of November 14, 2019 — just hours after the grand jury returned a bill — the State restated its case, this time at a preliminary hearing before the district court. The hearing continued into the next day · when it was concluded, the district court—unlike the grand jury—found that there was probable cause to indict Obrero” and sent the case to Circuit Court.

Prior to 1982, the Hawaii Constitution was identical to the US Constitution. regarding the requirement for a grand jury or indictment for felony criminal charges, according to Eddins. But a 1982 amendment to the state Constitution lifted the requirement for a grand jury indictment in felony criminal prosecutions.

In asking that his case be dismissed in July 2021, Obrero’s lawyers argued that prosecutors violated state law by using the complaint and preliminary hearing process to prosecute. That particular law, Hawaii Revised Statutes 801-1, says, “No person shall be tried and sentenced to punishment in any court, for an alleged offense, unless upon indictment or information, except for offenses within the jurisdiction of a district court. court or in summary proceedings for contempt’.

Obrero’s attorneys said the felony charges were not “within the jurisdiction of a district court” and could not be charged with an “information” — a formal charging document that describes the factual basis for criminal charges against a suspect — because that route is available only for “certain Class B and Class C felonies,” according to the Supreme Court opinion.

The defendant argued that he is a person who “should not be tried and sentenced to punishment in any court, for an alleged offense unless he has been charged,” according to the opinion.

“We agree,” Eddins wrote. “Ombrero is not charged with contempt. And the felonies he is charged with are not within the district court’s jurisdiction or information burden. . . . So Obrero is a person who should not be ‘tried and convicted. . . .’ in any court, for an alleged offense unless there is an indictment.”

Thursday’s decision upset county prosecutors, who say it jeopardizes a critical tool used to bring dangerous criminals to justice. Defense attorneys hailed the ruling as a long-needed confirmation that the most serious criminal offenses cannot be charged without a true bill from a grand jury.

Honolulu District Attorney Steve Alm said he was “disappointed” by the high court’s decision and would look to state lawmakers to pass legislation to overturn the provision.

“In 1982 the Hawaii State Legislature and citizens voted to amend the state constitution to allow prosecutors to charge felony offenders by complaint and preliminary hearing. This decision defies the will of the public and basic common logic, breathing life into a repealed statute from 1905 that was accidentally left on the books,” Alm said Thursday. “We will ask the Legislature to pass a bill that reverses today’s decision so that the important work of prosecuting dangerous criminals to continue as the Hawaiian people desire.

“While the Supreme Court’s opinion says prosecutors can still prosecute serious felonies through grand jury indictments, it ignores the fact that while the rest of state government has returned to normal after the COVID-19 pandemic, the judiciary continues to severely curtail the use of of grand juries on Oahu. The grand jury now meets only two days a week instead of the previous three, and the number of grand jury panels has also been reduced. These unjustified restrictions have already caused scheduling problems for our prosecutors, and today’s decision poses a threat to public safety by delaying the prosecution of violent and dangerous offenders.”

Obrero’s attorney, Thomas Otake, said he first raised the issue a year ago in the case of three Honolulu police officers charged with murder after a jury refused to return a true bill in the death of Iremamber Sykap, 16. who was killed. by police after a high-speed chase through the streets of Honolulu.

Oahu District Court Judge William Domingo found that there was not enough evidence against the officers in the Sykap case to continue the state’s prosecution.

According to Otake, prosecutors have been running away from grand jury rulings, and Thursday’s decision “puts an end to this illegal practice.”

After the Sycap case, “prosecutors had noticed that there were problems with their practice of bypassing the grand jury by charging felonies through a complaint,” he said. “They had over a year to adjust, but instead they continued to bring case after complaint. Any backlog created by having to now hand all these cases from last year back to the grand jury is entirely their fault. If they had objectively analyzed the issue when I first raised it, they could have started fixing the problem over a year ago.

“To be clear, the blame for any temporary chaos this decision creates in the system should be placed on the prosecutors who got it wrong for so long, not on the Supreme Court for now getting it right,” Otake said. “The grand jury system was intended to check the enormous power of the prosecutor. For decades, prosecutors in Hawaii have illegally sidestepped the requirement for a grand jury indictment in the most serious cases. Mr. Obrero’s case highlights what can happen when power of the DA is not regulated by the Courts or the people. After a group of citizens said loud and clear that he should not be prosecuted, the DA went ahead anyway.”

Obrero remains free on bail in 2019.

Hawaii County District Attorney Kelden Waltjen said in a statement that his office is “extremely disappointed” by the high court’s decision in the Obrero case. The decision runs counter to “established criminal law practices and procedures in place in Hawaii for the past forty years.”

On Hawai’i Island, grand jury opportunities come only three times a month—twice a month in Hilo and once a month in Kona, he said.

“It also ignores the intent of the voters, interferes with law enforcement, and endangers public safety. The decision prevents the initiation of criminal proceedings to arrest and charge states for serious cases, including but not limited to murder, kidnapping, robbery, of domestic violence, drug trafficking and sexual assault,” Waltjen said. “As a result, offenders may be released until prosecutors can proceed with charging information or schedule a grand jury presentation.

“To make matters worse, not all criminal prosecutions are eligible to proceed by information charge, and opportunities for grand jury presentation are limited.”

Waltjen said he agreed with the dissenting opinion of Chief Justice Mark Reck Tenwald, who said the majority decision “reaches a result that neither the legislature nor the electorate ever intended.”

Kauai District Attorney Rebecca Like said her office has been planning the potential ramifications of the Obrero case since oral arguments took place and is talking with other county prosecutors and the state Attorney General’s Office.

“We are also actively discussing with Kauai stakeholders how the decision will affect law enforcement operations and case processing in our circuit,” Like said.

Gary Yamashiroya, special assistant to state Attorney General Holly Shikada, said the department is reviewing the high court’s opinion and working with county prosecutors “to determine next steps.”

As for seeking legislative relief for Thursday’s ruling, state Sen. Karl Rhoads, chairman of the Senate Judiciary Committee, said he was confident lawmakers “will consider a solution in January” when the 2023 session begins .

“I’m just saying, they tried to impeach Obrero and they failed,” Rhoads said. “This is unusual and makes me question how strong this particular case was.”

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