A state Supreme Court ruling removed the option of using preliminary hearings instead of grand juries. Prosecutors want that option back.

Prosecutors may regain the ability to charge people with felonies through preliminary hearings as well as grand juries under a bill that passed its first hearing on Friday.

The effort comes more than four months after a state Supreme Court ruling that a grand jury must hear each case before a defendant can be taken to trial. That reversed four decades of practice in which prosecutors were able to use both options and invalidated dozens of cases, including some involving violent criminals.

Prosecutors warned public safety was at risk and asked state lawmakers to step in.

“The Supreme Court, I think, threw the whole system for a loop,” Honolulu Prosecutor Steve Alm testified Friday during the initial hearing for Senate Bill 36. The Senate Judiciary Committee approved the bill unanimously.

Chair Judiciary Karl Rhoads during mail in ballot hearing held in room 016 at the Capitol.
State Sen. Karl Rhoads says he spent two months coming up with a compromise between prosecutors and defense attorneys for SB36. (Cory Lum/Civil Beat/2019)

The state Supreme Court ruled in the State v. Obrero case that state law, which does not allow indictment through preliminary hearings, was at odds with the state constitution, which does allow it.

SB 36 would fix that by adding the ability for people to be tried and sentenced “for certain alleged felony offenses through the complaint and preliminary hearing process, indictment by grand jury, or by written information.”

In a nod to concerns that prosecutors could use preliminary hearings to bypass the grand jury process, the bill would limit how many times prosecutors can attempt to initiate charges.

This was a key issue in the the State v. Obrero case, when a grand jury declined to charge Richard Obrero. The prosecutor’s office then found a judge to agree to charges through a preliminary hearing.

“I understand the Legislature’s trying to strike a balance here,” said Thomas Otake, Obrero’s defense attorney. 

Alm said it’s important for prosecutors to have the option of bringing a case before a preliminary hearing, where a judge would be the sole decider, instead of always having to prove to a grand jury of 16 people that there’s enough evidence to charge somebody.

Grand juries don’t include cross examination of the defendant, so while they often move quicker than a preliminary hearing, their transcripts are inadmissible for trial. 

Alm said this can be challenging for sensitive cases regarding things like domestic violence. If a grand jury were used to initiate charges and the victim fled in fear before the main trial, it would effectively halt the court proceeding.

But if a preliminary trial were used – which does offer cross-examination – “we can introduce the transcript into evidence and do the case even without the victim,” said Alm.

The need to convene grand juries to go back over cases that were invalidated by the Supreme Court’s decision — 174 just on Oahu — also has been slow-going and created a backlog, Alm said.

So far, he testified, his office has whittled down only about 100 of those cases even as new cases arise.

Otake said he appreciates to need for efficiency and the bill’s intent to square Hawaii law with the state constitution.

The defense attorney also welcomed a provision in the bill that would prevent prosecutors from experimenting with different indictment methods.

Basically, if a grand jury refuses to charge somebody with a felony, the bill prevents the prosecutor from simply reattempting charges through a preliminary trial without any new evidence. 

But Otake argues the most serious felony charges – which carry the heaviest potential punishments – should always have to go through a grand jury as a check on the state’s “immense” power to imprison people.

“The constitution was meant to provide rights and protections to citizens. It’s not about providing rights and options to prosecutors,” he said.

Alm’s office had pleaded for a special legislative session in September to pass a bill like this –  to no avail. But the judiciary committee’s chair, Sen. Karl Rhoads, was ready with a bill to consider early this session, the culmination of two months compromising with prosecutors and defense attorneys and “at least five different actually written versions,” he said.

The bill must still go through two readings in the Senate before crossing over to the House.

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