The Honolulu Prosecutor’s Office is asking the Legislature to convene in special session and draft a new law that would reverse a recent ruling by the Hawaii Supreme Court that limits prosecutor’s choices when indicting serious criminals.

Honolulu First Deputy Prosecutor Thomas Brady told a West Oahu community group last week that the court’s decision prevents prosecutors from initiating serious felony cases using preliminary hearings before a judge and ruled that a grand jury must hear each case before taking a defendant to trial. Brady said 168 convicted felons could use the ruling to overturn their cases.

“I want you folks to know there was a decision made by the Hawaii Supreme Court on Sept. 8 that invalidated our way of charging cases by way of preliminary hearing,” Brady said. “This was based on 40 years of practice that was a constitutional amemdment that allowed us to go to preliminary hearing.”

In the case of State V. Richard Obrero, the court ruled 3-2 that Hawaii Revised Statutes Section 801-1 requires serious felony prosecutions (murder, robbery, sexual assault) be brought via grand jury indictment. The court ruled the prosecution of Obrero was unconstitutional and that the complaint must be dismissed.

“We are requesting a special session so that legislators can go in and correct this decision by way of law. We are not getting a lot of traction,” Brady said. “I don’t want to see anybody that is violent released because of the new case law that came out.”

Prosecutor Tom Brady.
Honolulu First Deputy Prosecutor Thomas Brady says his office has asked the Legislature to convene a special session to deal with a recent Supreme Court ruling that makes it harder to bring cases against serious criminals. Cory Lum/Civil Beat/2021

“The net result is we have 168 felony cases already charged in the system that currently are invalidated and what we have to do is rush to go to a grand jury to take care of these matters so nobody is released. With the support of HPD, so far so good. Nobody has been released yet,” Brady said.

Brady was speaking at a town hall meeting addressing the rise in crime in West Oahu organized by City Council member Andria Tupola. Brady urged the residents to contact their elected representatives to support a special session.

The Hawaii Judiciary now plans to increase the number of grand jury panels statewide to comply with the ruling.

On Oahu, according to the court system, panels would increase from six to eight, beginning in September, with the two additional panels convening every other week. Additional grand jury sessions will be added starting Sept. 26. This will increase the number of sessions held from three to four each week.

Maui County will add two grand jury session per month, to be held every other Friday. Grand juries will convene once per week throughout 2023.

Grand jury sessions in Hawaii County would increase from three to four per month. Hilo will continue to hold two grand jury days each month. Kona will hold one more grand jury day each month, starting Sept. 26.

For Kauai County, grand jury sessions will increase from one to two per month. starting in September.

Senate President Ronald D. Kouchi issued a statement Monday saying he has received requests from prosecutors for a special session.

“The Senate has been advised of the concerns of the four county prosecutors regarding the potential impacts raised by the Hawaii Supreme Court’s opinion in State v. Obrero and we are in conversation with our members, our House colleagues, and the Judiciary, to assess appropriate next steps,” Kouchi said.

The court decision detailed the sequence of events:

On November 7, 2019, Obrero fired a gun at several individuals, which led to the death of a minor. That same day, the State arrested Obrero for the minor’s death. On November 12, 2019, the State filed six single-count complaints against Obrero. The District Court of the First Circuit (district court) scheduled Obrero’s preliminary hearing for the afternoon of November 14, 2019. On the morning of November 14, 2019, the State sought a grand jury indictment against Obrero for the offenses included in the complaint, as well as three additional offenses.

However, the grand jury refused to return a true bill on all of the offenses. That afternoon, the State proceeded with the preliminary hearing. At the end of the hearing, the district court found probable cause on the six offenses included in the initial complaints and committed the matter to the Circuit Court of the First Circuit (circuit court).

Although the State may not prosecute Obrero via the constitutionally infirm complaint, the State is not without any further means to seek the prosecution of an individual after a return of no true bill of indictment. Obrero concedes that “a grand jury panel’s return of a no bill [does not] automatically bring a criminal proceeding to an end.” However, Obrero argues that “due process should require the State to demonstrate, once a grand jury returns a no bill, that any subsequent indictment … is based, at least in part, on additional evidence[.]” Obrero is correct.

The court concluded that the state cannot subject Obrero to trial and sentencing without a grand jury indictment and reversed the circuit court’s denial of Obrero’s motion to dismiss. The ruling says if the Legislature wants to “strip 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 plainly intended to sweep away the grand jury requirement as the sole method to prosecute felonies. The fact that a defunct statute was left on the books should not frustrate the text of the constitutional amendment and the will of the voters and legislative supermajorities that passed it.”

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