The Honolulu Prosecutor’s Office properly brought murder and attempted murder charges against three officers involved in the fatal shooting of Iremamber Sykap even without securing indictments from a grand jury, the office argued in court documents Thursday.
Geoffrey Thom faces second-degree murder charges for shooting Sykap eight times in the back. Zachary Ah Nee and Christopher Fredeluces both face attempted murder charges for shooting into the sedan driven by Sykap.
The prosecutor’s response comes more than a week after defense attorneys for the three officers asked the Honolulu District Court to dismiss the felony cases.
The prosecutor’s office says that the constitution gives it the option to pursue charges against the officers through the courts.
“The district court, like all courts and all attorneys, is obligated to follow the law,” Deputy Honolulu Prosecutor Christopher Van Marter wrote in the government’s reply brief. “District courts are not empowered to remake the law or divine novel theories that undermine, and indeed, overrule other provisions of law.”
Prosecutors are expected to present evidence at a preliminary hearing on Tuesday in an effort to convince the court that probable cause exists to charge the officers. The court is also going to take up the motion to dismiss the cases at the same time.
Thomas Otake, the attorney representing Ah Nee who asked the court to dismiss the cases, didn’t respond to messages Thursday afternoon.
The defendants now appear to be building a case of their own to counter the prosecutor’s arguments.
On Tuesday, Crystal Glendon, the attorney for Fredeluces, subpoenaed nine HPD employees to testify on behalf of Fredeluces at the hearing next week.
Those employees are Ofc. Chanel Price, Ofc. Daniel Tuttle, Detective Dayle Morita, Ofc. Jessica Uehara, Detective John Demello, HPD evidence specialist Michael Lynch, Sgt. Rance Okano, Lt. Taro Nakamura and Sgt. William Malina.
Van Marter wrote in a court memo Thursday that a preliminary hearing is just one method prosecutors can use to bring charges.
But Otake and the other defense attorneys argue that state laws, several state Supreme Court cases and court rules all indicate prosecutors need a grand jury indictment before pursuing charges through the courts.
Otake also cast doubt on the prosecutors’ ability to prove probable cause in court if they weren’t able to convince a grand jury, made up of regular individuals and not trained lawyers.
On Thursday, Van Marter fired back, writing that state law does not trump the constitution.
As part of a footnote in the reply brief, Van Marter cites a 2013 case that went to the Hawaii Supreme Court in which murder charges were brought against a defendant after a grand jury declined to indict the individual.
He writes that pursuing charges through a court hearing instead of a grand jury is not unprecedented and contends the defense’s arguments are “based on flawed legal analysis, misinterpretation of the law, oversight of contrary authorities, misleading strawman arguments and convoluted reasoning.”
“This is no Perry Mason moment,” Van Marter writes, referencing the 1950s court drama.
Eve Hanan, a former defense attorney and an associate professor teaching criminal law at the University of Nevada, Las Vegas, said that prosecutors tend to present just enough evidence to grand juries to get an indictment. It’s a legal strategy to prevent the defense from obtaining useful information until further along in court proceedings.
In general, prosecutors still have the option to pursue charges through other means, like a second grand jury or a preliminary hearing. However, she said it is uncommon for a prosecutor to pursue charges through court after being turned down by a grand jury.
“But then again, these officer shooting cases are often uncommon in many ways,” Hanan said, noting the amount of evidence gathered in police shootings and the high-profile nature of those cases.
Bill Harrison, a prominent local defense attorney, doesn’t believe prosecutors are prohibited from going through a preliminary hearing process after failing to get an indictment from a grand jury and said the constitution gives prosecutors multiple options in pursuing charges.
Though he notes that the state Supreme Court still has not opined on the specific issue in this case.
“Historically, we look to the grand jury in instances like these,” Harrison said. “The question now becomes, ‘Does the prosecutor get to go over their heads to the court to make a separate determination?’ It’s an interesting question.”
The preliminary hearing is scheduled for 1:30 p.m. Tuesday at District Court in Honolulu.
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