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The Honolulu Advertiser
Posted on: Monday, August 12, 2002

COUNTERPOINT
Defending the indefensible

By Robert M. Rees
Moderator of 'Olelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands"

How the last four state attorneys general have contributed to Hawai'i's biggest problems.

A simple inquiry — "Who will you nominate to serve as state attorney general?" — may be the best question we can ask of Hawai'i's gubernatorial candidates.

The last four attorneys general, going back to 1986, have been major contributors to Hawai'i's biggest problems. They have defended and even encouraged official wrongdoing at the state mental hospital, at our prisons and at the education and health departments with regard to how we educate disabled children, and at grand jury proceedings with illegally bolstered testimony and in other venues.

Even the U.S. Supreme Court has taken note of our odd posturing. Justice Harry Blackmun, in 1992, chastised Hawai'i for its view that the state's financial needs outweigh the requirements of the Bill of Rights. Wrote Blackmun, "Self-interested concern has no appropriate role in interpreting the contours of a substantive constitutional right."

Hawai'i apparently learned nothing from Blackmun. This year, our AG joined Alabama in urging the U.S. Supreme Court, in a case to be decided next term, to reduce Congress' power to make national rules aimed at eliminating sex and race discrimination committed by state employers.

Hawai'i's argument is a throwback to the days of state's rights before there was a Fourteenth Amendment. Even President Bush's right-wing solicitor general, Theodore Olson, opposes Hawai'i's view on the grounds that it may implicate a number of civil rights statutes.

Our AG's Office is quick to defend the indefensible. For example, in Bernard v. State of Hawai'i, our AG's Office is defending the state's refusal to supply a deaf inmate with an interpreter for parole hearings.

The AG's Office may be quick to circle the wagons, but it is slow to learn. Before the state paid $170,000 to Bruce Freeman, an acquittee by reason of insanity, for unconstitutional incarceration at the Oahu Community Correctional Center instead of at the Hawaii State Hospital, Gov. Ben Cayetano asked Attorney General Earl Anzai about the situation.

Anzai assured the governor, "No mental health acquittees are currently awaiting transfer from OCCC to HSH."

As Anzai was speaking, 35-year-old Roman Brewster, an acquittee by reason of insanity, was dying in prison while awaiting transfer. Brewster spent the last three months of his life illegally incarcerated.

The last official report on Brewster, in the prison's log or M-4 Confidential Informer, was written by a correctional officer on July 21, 1999: "Brewster doing his Tarzan imitation."

Evidently Brewster was yelling for help or again asking for medication to stop the voices he was hearing. The next morning, he was found dead in his cell. The cause of death was cardiac arrhythmia, and the AG's Office later opined, "He would have died anyway."

When the attorney for Brewster's family, Bruce Sherman, filed a class-action suit on behalf of similarly treated acquittees, he estimated there were 17 victims. It now appears there are more than 100.

In fighting the class action, the state has even tried to stop witnesses from telling the whole truth. During a deposition on Feb. 15 of this year, when HSH admissions officer Jane Donahoe offered to turn over her personal journal of admissions, the AG's Office objected.

According to documents lodged with the court, Deputy AG David Webber called for a recess. Behind closed doors, Webber and deputy AG Barbara Fabrey — who was representing other state defendants, but not Donahoe, and who thus had her own conflicted agenda — berated the witness.

Later, when Webber objected to questions about this confrontation, he explained, "(Donahoe) is, as you know, an employee of the state. I am the attorney for her employer ... So I instruct the witness not to answer."

Donahoe then asked a question that every Hawai'i citizen ought to be asking: "Is anyone representing me from the Attorney General's Office?"