An assault case involving a well-connected Honolulu real estate executive sat dormant for over a year after the charge was filed.
That kind of delay could cause the case to be dismissed. And legal experts say it raises questions about whether the defendant received special treatment.
Bert Akio “BJ” Kobayashi, a well-known real estate investor and developer, was charged in April 2019 with third-degree assault after an altercation with a woman in her 20s. The incident occurred in June 2018. As of last week, the misdemeanor case was marked “inactive” in court records, meaning he hadn’t been served with a summons.
Civil Beat reached out to the prosecuting attorney’s office on Thursday for an explanation. An office spokesman didn’t provide one, but four days later, Kobayashi was served.
“It’s like there’s one set of laws for those who have an in with politicians, and there is another set of laws for people like us,” said Ken Lawson, who teaches criminal procedure at the University of Hawaii’s William S. Richardson School of Law.
Asked for comment, Kobayashi emailed a statement.
“It was my understanding that the matter you refer to was fully resolved, and I welcome the opportunity to clear all of this up,” he said. “I am fully pursuing all efforts to do so. It is always important to me to be an upstanding member of this community and I have never asked for special treatment in relation to this or any matter.”
The 50-year-old Kobayashi comes from a distinguished local family. He is the son of Bert A. Kobayashi Sr., a major political donor who founded the Kobayashi Group. The boutique development and investment firm is behind some of Honolulu’s most elite real estate including Park Lane Ala Moana and the Hokua luxury condos.
His grandfather founded Albert C. Kobayashi Inc., whose website says it is the “largest 100% locally owned contractor in Hawaii.”
BJ himself is the chairman, CEO and co-founder of BlackSand Capital, a real estate private equity firm based in Honolulu. He is also a co-founder and partner of the Kobayashi Group and sits on the board of the Hawaiian Electric Co., among other organizations. The Punahou School graduate attended Georgetown University and once worked in the Washington, D.C., office of Hawaii’s legendary U.S. Sen. Daniel Inouye.
The criminal complaint states that Kobayashi “intentionally, knowingly, or recklessly” caused bodily injury to another person. It does not include details of the incident.
Civil Beat has a pending public records request with the Honolulu Police Department for the police report. The alleged victim in the case declined to comment.
Honolulu Prosecuting Attorney spokesman Brooks Baehr said the office had made “numerous” attempts to serve Kobayashi. He did not respond to a request for documents showing details of attempts to serve. He also did not respond to detailed questions about how summonses are usually served and how Kobayashi’s case differed.
“Initial efforts to serve him failed,” Baehr said by email on Monday. “Those efforts intensified in March 2020. He was served today.”
Baehr said on Monday evening that he did not know where Kobayashi was served.
Usually, criminal defendants receive a hand-delivered summons within a day or two, Lawson said. Delays could be expected in cases involving a defendant without a permanent address, like a homeless person, or someone who skips town, Lawson said.
Kobayashi’s case is “highly unusual,” Lawson said.
“I find it hard to believe that a person well known in the business community could be charged with a crime of violence, his case be marked inactive, and people say somehow they can’t find him,” he said.
The almost year-long gap between the incident and the criminal charge doesn’t raise any concern for Lawson. It depends on the facts of the case, he said.
“It could just be they wanted the investigation to be thorough, and it may have taken that many months,” he said.
As for the summons, prosecutors can usually find a home or work address quite easily, said Randal Lee, a former Circuit Court judge and former prosecutor. Indeed, Kobayashi’s office address is posted online. A Civil Beat reporter located Kobayashi’s home address and confirmed his residence with a visit on Friday.
In an email, Baehr said obstacles to serving a defendant can include gated communities and private offices without public access.
Civil Beat was able to visit the entrance of BlackSand Capital’s lobby on Friday, although it was closed due to COVID-19, according to a posted sign.
Kobayashi does live in a secured building in Honolulu, but Lee said law enforcement typically either work with the building’s security to access the person’s unit or wait outside for the person to come out. Prosecutors can also serve the defendant’s attorney if they have one, Lee said.
“The prosecutors have no excuse,” Lee said. “If this person is prominent, it may raise some questions about is someone sitting on the warrant as a favor to them?”
It’s possible that Kobayashi’s complaint “fell into a black hole” in the shuffle of paperwork at the prosecutor’s office, Lee said, but he’s doubtful.
“Given the fact that the person is somewhat notable, you’d think that someone would be on top of it,” he said. “They wouldn’t just let it slip. It just looks bad.”
Asked to respond to concerns about special treatment, Baehr offered no comment.
“Don’t know that we would talk more about an active case,” he said by email.
Case Could Be Dead On Arrival
Summonses need to be served quickly, Lee said, because Hawaii Rule of Penal Procedure 48 allows the court to dismiss a case if the trial “is not commenced within six months.” That deadline has long passed, Lee said, so Kobayashi is probably off the hook.
“More likely than not, the case will be dismissed,” he said.
A judge could dismiss the case with prejudice, meaning it can’t be refiled, Lee said.
Even when a delayed case does go forward, a time lag can hurt the prosecution and benefit the defendant. With time, memories fade, Lee said.
And witnesses may move away, have a change of heart about pressing charges or just won’t show up to court, Lawson said.
“It’s always in the defendant’s best interest to put as much time as possible between the time of offense and time of trial,” he said.
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