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The Honolulu Advertiser
Posted on: Sunday, July 1, 2001

Uyesugi appeal likely to fail

By Tanya Bricking
Advertiser Staff Writer

Legal observers in the case of Hawai'i's most notorious mass murder say Byran Uyesugi doesn't have a chance of overturning his conviction in the Xerox killings.

Byran Uyesugi was sentenced to life in prison for shooting and killing seven co-workers in 1999.

Advertiser library photo • June 1, 2000

But new attorneys handling his appeal say unclear jury instructions and testimony from victims' families that inflamed the emotions of the jury made it impossible for Uyesugi to receive a fair trial.

Uyesugi, 41, a former copy-machine repairman, was sentenced 10 months ago to life in prison without parole, Hawai'i's harshest sentence, for killing seven co-workers in a 1999 shooting rampage.

A jury rejected the defense argument that he was criminally insane at the time of the crimes and that he was haunted by a spirit that poked at his head and filled his mind with ideas about having FBI agents after him.

On appeal, the public defender's office is hanging its argument on what it claims were flawed jury instructions, saying the botched legal directions cost Uyesugi a fair trial.

"The major hurdle for the defense is that it's such a heinous crime," said Honolulu criminal defense attorney Howard Luke, who handled more than a dozen insanity cases when he was a city deputy prosecutor in the 1980s. "It's of monstrous proportions. I have no doubt the Supreme Court is going to be objective. Even so, the nature of the offense, the number of those killed, the fact that he just mowed them down makes it a very tough row for the defense to hoe."

Even if the Supreme Court finds there were legal errors in Uyesugi's murder trial, a reversal would not make him a free man.

"The best he can expect is a new trial," said Edward Harada, one of Uyesugi's public defenders, who worked on the appeal brief with attorney Deborah Kim.

The best-case scenario for Uyesugi would result in his being sent to the state mental hospital instead of prison, Harada said.

Uyesugi's appeal claims the court did not properly define legal terms used in the criminal insanity defense in making jury instructions. It also argues that unfair evidence was allowed in the trial and that Uyesugi's trial attorneys, Jerel Fonseca and Rodney Ching, were ineffective.

"As I understand the law, we should get a reversal based on the issue of failed jury instructions," Harada said.

Instructions questioned

Flawed jury instructions are the most frequently raised issues of appeals in criminal cases, said veteran Honolulu criminal defense attorney Brook Hart. "Courts reverse more on jury instructions being wrong than any single other factor."

But proving jury instructions were flawed means showing jurors were so misled or misinformed by instructions that it changed the outcome of the trial, Hart said.

While Hart agreed with some of the Uyesugi defense team's arguments on appeal, including the jury bias created by allowing so much testimony from family of Uyesugi's victims, he said he doubts Uyesugi will prevail on appeal.

Honolulu criminal defense attorney Earle Partington put Uyesugi's odds at "less than zero."

"There's just no chance any court is going to reverse his conviction," said Partington, who watched much of Uyesugi's trial and provided commentary for the media. "I don't think he has a shot."

The appeals attorneys are giving away all of their cards, Partington said, even blaming Uyesugi's trial attorneys, an argument Partington says would be better saved for a later proceeding.

'An uphill fight'

One of the biggest problems in appealing this type of case is that even if the court finds that there were errors, the court could rule that the errors were harmless to the outcome of the case, said Keith Shigetomi, another criminal defense attorney who provided media commentary on the Uyesugi trial.

"I think its going to be an uphill fight," former deputy prosecutor Michael McGuigan said. "The facts, in and of themselves, were very well laid out by the prosecution."

Prosecutor Peter Carlisle's office declined to comment on the defense's June 8 appeal brief. His office has 40 days to file a legal response or ask for an extension.

Uyesugi's lawyers never claimed that he didn't commit the crime, so the appeal might look to the public like a waste of time. It's not, said William Harrison, another Honolulu criminal defense attorney who followed the case.

Any time a conviction sends someone to prison for life, an appeal provides the opportunity to reflect on whether the system worked, he said.

"It's always worth a second look," he said. "It would be almost negligent not to appeal, because you're looking at life without parole."

Staff writer Tanya Bricking can be reached at 525-8026 or at tbricking@honoluluadvertiser.com.