A new policy in the Honolulu Prosecutor’s Office means some allegations will languish if the complainant doesn’t call to follow up.

Theft, terroristic threatening and criminal property damage are among the cases that the Honolulu Prosecutor’s Office has closed without review since a new policy took effect in January.

Nearly four dozen cases were closed without being reviewed by a deputy prosecutor simply because they were “unsolicited,” meaning the complainant did not follow up with a phone call, according to partially redacted case files reviewed by Civil Beat.

Those included 18 counts of fourth-degree theft, which covers stolen property or services worth $250 or less, 10 counts of harassment, 10 counts of second-degree terroristic threatening, five counts of fourth-degree criminal property damage, four counts of third-degree criminal property damage, two counts of third-degree theft, one count of indecent exposure and one case of a dangerous dog.

In these cases, a suspect was identified but not arrested, requiring a victim’s cooperation with the prosecution to prove the case.

Department Prosecuting Attorney prosecutor law
The Honolulu Department of Prosecuting Attorney is not charging some misdemeanors unless a victim calls. (Kevin Fujii/Civil Beat/2023)

Certain misdemeanors — fourth-degree sex assault, third-degree assault, violating a temporary restraining order and harassment by stalking — are still reviewed for prosecution, even if the complaining witness does not call the prosecutor’s office.

The prosecutor’s office says the change benefits victims of crime by focusing on cases in which the complaining witness makes an effort by calling. Otherwise, the lack of contact may signal an unwillingness to prosecute since police officers reach out to complaining witnesses and inform them about the need to contact the prosecutor’s office in order to pursue the case.

The total number of closed cases, however, is likely in the hundreds, said Wendy Shimomura, a legal clerk in the Victim Witness Kokua Services branch of the prosecuting attorney’s department. That office is tasked with reaching out to victims and witnesses and helping them navigate the justice system and seek restitution.

Shimomura was surprised when she was called to a staff meeting in January and informed about the new policy. Her job on the intake desk is now to log the majority of unsolicited cases in the system but mark them as declined.

Those cases will languish instead of being forwarded for review unless a victim calls the prosecutor’s office to ask about them, she said. The department is no longer reaching out to the complaining witnesses in those cases to explain their options, she added.

Shimomura believes that the new policy deprives some victims of justice by cherry-picking which misdemeanors get prosecuted. She also worries that some victims, particularly the elderly, won’t know their cases were neglected because they didn’t know they had to call the prosecutor’s office.

“How confused would you be if you filed a police report and then you never heard anything about your case ever again?” Shimomura said. “This is not OK. You’re throwing people’s reports in the trash.”

Wendy Shimomura is photographed Tuesday, Sept. 5, 2023, in Honolulu. She contends her employer has been dismissing numerous misdemeanor cases without pursuing them in the Honolulu prosecuting attorney’s office. (Kevin Fujii/Civil Beat/2023)
Wendy Shimomura contends her employer, the Honolulu Department of the Prosecuting Attorney, has been dismissing numerous misdemeanor cases because a victim didn’t call the office. (Kevin Fujii/Civil Beat/2023)

Shimomura, 37, initially raised her concerns anonymously with the Honolulu Ethics Commission, the state Attorney General’s Office and Honolulu Prosecutor Steve Alm.

“This is more of an issue of policy rather than an issue of illegality,” the Attorney General’s office wrote to Shimomura in an email, declining to help.

In interviews in August, officials in the Department of the Prosecuting Attorney said that victims of misdemeanor crimes that police didn’t witness must indicate their willingness to cooperate by calling in, otherwise a prosecutor may not be able to gather sufficient evidence to prove the case.

Florence Nakakuni, who leads the department’s Misdemeanor/Traffic Division, explained that her division receives about 75 to 100 penal summons cases a month in which no one was arrested but someone reported a misdemeanor to HPD that a police officer did not witness.

“We look at all of them anyway,” Nakakuni said in an interview in early August.

She said that her division receives, in total, about 4,000 cases a month.

“If we can’t prove it beyond a reasonable doubt, with our volume, if it’s not in there, we’re not going to chase it,” she said. “Because I can’t deal with 4,000 cases.”

Shimomura said the cases that aren’t the four specific charges don’t even get sent to be reviewed for evidence.

“Regardless if there was enough evidence to proceed or not, their case wasn’t even reviewed to see if it had enough,” she said.

The new policy, which took effect in January, “eliminated unnecessary and additional work” by the Victim Witness Kokua Services staff and eliminated “the backlog created by the prior administration,” the department wrote in a response to a complaint to the City’s Integrity Hotline.

“The whole purpose of the implementation of these procedures was to streamline the existing process to expedite and focus on cases with (complaining witnesses) that were interested in prosecution and cooperative,” the department wrote.

A January meeting agenda of the Misdemeanor/Intake Unit provided by Shimomura says, “Volume is overwhelming at MD Level, more case load, less DPAs,” referring to deputy prosecuting attorneys.

Nakakuni acknowledged that her division had 18 attorneys when Alm took office in 2021, but now only 13 remain. “We’ve never been so short,” she said.

Florence Nakakuni, pictured in 2013 as then U.S. Attorney, now heads the Misdemeanor/Traffic Division in the Honolulu Department of the Prosecuting Attorney. (Hawaii News Now)

In the response to the Integrity Hotline, the department said it was HPD’s responsibility to refer cases for review if there was sufficient evidence to prove them beyond a reasonable doubt, the complaining witness wanted to prosecute and the suspect was identified. In such a case, HPD would inform the complaining witness to contact the prosecutor’s office, the response said.

HPD District 1 Acting Capt. High Shin Lin said Tuesday in an interview that his district has four officers assigned to a misdemeanor follow-up detail. It’s their policy to reach out and inform every victim about the need to contact the prosecutor’s office to pursue a case.

“If they don’t want to follow up with prosecution by contacting the prosecutor’s office or being able to identify the suspect for us, or even willing to prosecute, really, the case isn’t going to go anywhere,” Lin said. “A lot of the responsibility falls on them, because without their assistance, a lot of our hands are going to be tied.”

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