Honolulu Prosecuting Attorney Steve Alm’s office said Wednesday that it presented evidence to an Oahu grand jury seeking indictments of three Honolulu police officers relating to their April 5 shooting of Iremamber Sykap, but the grand jurors “declined to return indictments for any of the officers.”
The news was shared in a three-sentence press release from Alm’s office.
“The Department is reviewing the matter,” the office said.
Officers shot and killed the 16-year-old while he was behind the wheel of an allegedly stolen vehicle they were pursuing. Neither police nor prosecutors have released body camera footage of the fatal incident, but Hawaii News Now obtained footage showing an officer shooting 10 times through the back of the car. Medical records obtained by the station show the teenager was shot in the back of the head.
Neither the police department or prosecutors have released the officers’ names.
Sykap’s death, and that of 29-year-old Lindani Myeni the week after, have sparked protests, calls for accountability and reform and frustration with a lack of answers from officials in the cases. Honolulu police have shot three people this year so far: Sykap, Myeni and Dion Kitzmiller, who survived being shot by officers who said he brandished a gun while they attempted to serve a bench warrant.
Alm said in a May press release that he would hold a press conference if he found officers were justified in their actions or if they were indicted.
In an email Wednesday afternoon, Matthew Dvonch, a spokesman for Alm’s office, said there will be no press conference at this time.
“We’re still reviewing the matter but I’ll let you know as soon as something is decided,” he wrote.
Asked what percentage of Honolulu grand juries have declined to bring charges in the last year, Dvonch referred the question to the judiciary.
Even though the grand jury declined to indict in the Sykap case, prosecutors could bring about charges another way, according to Jacquie Esser, a public defender and vocal advocate for police reform.
With a preliminary hearing, prosecutors could present evidence to a judge, with defense attorneys present, in a courtroom that is open to the media and the public, she said. In that scenario, the judge would decide whether there is probable cause, which is a “very low standard,” Esser said.
The fact that prosecutors even empaneled a grand jury suggests they feel they have enough to win a case, Esser said.
“Ethically, they cannot bring charges against someone if they do not believe they can prove the case beyond a reasonable doubt,” she said. “The fact that they did that says they believe these police officers violated the law.”
In grand jury proceedings, prosecutors usually present a one-sided narrative to obtain indictments and file criminal charges. Unlike in criminal trials, the defense is not present. The environment is so favorable to the prosecution that a former chief judge in New York famously said prosecutors could “indict a ham sandwich.”
Eric Seitz, an attorney representing the Sykap family in a wrongful death lawsuit, said he was “very disturbed” by the prosecutor’s announcement.
“I cannot imagine why they would take it to a grand jury so quickly under these circumstances if there was any risk, unless they, frankly, expected that there wasn’t going to be an indictment, and that’s what they wanted, for some cover,” he said.
He said he wants to see the transcripts of the grand jury proceedings “to see what was presented and what was not presented.”
“This is the first time in my memory, in practicing law in some 45 years in Hawaii, that I’ve ever heard of a grand jury not indicting when a prosecutor has brought a case,” he said.
“There are lots of cases in which grand juries have indicted and, in my opinion, they should not have indicted because the evidence was so weak. So this is a first experience. It’s very surprising. And we will have to get the transcripts and review it.”
Getting the transcripts though may be difficult, if not impossible, according to Brian Black, the executive director of the Civil Beat Law Center for the Public Interest, a nonprofit law firm that specializes in public records litigation.
“Grand jury proceedings are the poster child for secret court records,” he said in an email.
However, there is a recent example of a grand jury transcript being released in New York.
In a rare move, the New York Attorney General released grand jury transcripts last month, the New York Times reported. They related to the case of Daniel Prude, who was experiencing a mental health crisis when officers put a mesh hood over his head, handcuffed him and pushed his head into the ground. A week later, he died.
The New York Attorney General’s office reported that it was “the first time in New York history that grand jury proceedings in a case of a police-involved death have been made public.”
The transcripts quickly attracted criticism, however, for prosecutors’ presentation of material favorable to the officers, the Times reported. Ultimately, the New York grand jury declined to indict officers in the Prude case.
It’s not clear whether prosecutors in Hawaii could release transcripts “because the Hawaii rules on grand jury proceedings are different from the New York rules,” Black said.
According to Hawaii Rules of Penal Procedure, those involved in the grand jury can disclose related information only if directed to do so by the court in relation to the proceeding, or if the suspect is indicted and they show grounds may exist for a motion to dismiss the indictment.
In a statement, Interim Honolulu Police Chief Rade Vanic said an internal investigation into the Sykap shooting is ongoing. Internal investigations, done by the HPD Professional Standards Office, are done to find violations of departmental policy, not law.
“Police work is difficult, and officers must sometimes make split-second decisions in potentially deadly situations,” he said. “Despite the many challenges, we will continue to do the best we can to protect and serve our community. We are appreciative of the jury’s time and consideration.”
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