Airport arrests called undue pressure
By Walter Wright
Advertiser Staff Writer
Recent arrests of Honolulu International Airport officials have brought attention to the long-standing practice by state and county law enforcement agencies to arrest and release white-collar crime suspects before they are charged.
Investigators and prosecutors like the practice, partly because it puts pressure on the suspects and on others who may have information. Honolulu Prosecutor Peter Carlisle, who is not involved in pursuing the airport cases but whose city office has overseen many white-collar cases, said arrests also usually stop crimes.
But defense attorneys and their clients said they don't like the practice, especially when it brings embarrassing publicity and suggests guilt even before suspects are charged. Keith Shigetomi, who represents airport maintenance supervisor Dennis Hirokawa, said the attorney general was "trying to scare all these people into saying what (authorities) want to hear."
Dana Ishibashi, who represents Airport Visitor Information Director Richard Okada, said "they want to embarrass these people and, they hope, ... other people" who "will talk to them more freely because they don't want to be hauled before the media."
Both said their clients, who were arrested and released without charges the same day, stated that they are innocent of any alleged kickbacks and bribery in airport contracts under investigation.
In the airport case, and many other state and county cases before it, suspects have been arrested, then released during continuing investigations. Because they haven't been charged, they do not have to post bail and are under no legal restraints unless they are later charged, usually in an indictment, and re-arrested. The indictments usually are returned weeks, if not months, later.
Federal law enforcement agencies can't make such arrests based only on an investigator's opinion that there is "probable cause" to believe a crime has been committed and then release a suspect without charges, U.S. Attorney Ed Kubo said.
Federal court rules require an officer to take the arrested person before a judge as quickly as possible to face charges.
The rationale is that once there is enough probable cause to arrest somebody, the judicial process should begin, he said. But state and local court rules — and the state and U. S. constitutions — do allow the arrest and release of an individual without charges.
Kubo, a former city deputy prosecutor, said being able to arrest and release allows an investigator to try to question suspects before they can prepare a cover story or destroy evidence — as they might do if they learned that they were the subjects of grand jury investigations.
Kubo said arrests without immediate charges can deter others.
"There is a legitimate law enforcement reason for doing that," he said.
Professor Virginia Hench, a criminal law expert at the William S. Richardson School of Law at the University of Hawai'i, said that once a person is charged with a crime, the suspect's right to be represented by an attorney is enhanced, and investigators have to go through that attorney.
By arresting people without immediately charging them, she said, the state and county prosecutors "are doing their job the way they think it should be done." She said she doesn't have any reason to believe that standards for arrest and release here have been abused.
But Hench said another way to handle such cases would be to bring the suspects before a grand jury, which "puts the same pressure on people," without necessarily exposing them to publicity when they may never be charged.
Addison Bowman, a former law school ethics professor, said he doesn't see "very much, if anything, wrong" with arresting and releasing a suspect without immediate charges "and it may be a legitimate investigative tactic."
If it were abused, the American Civil Liberties Union and private attorneys would be quick to take officials to the courts, which would not tolerate such abuses, he said.
Deputy Attorney General Christopher Young, handling the airport investigation, said suspects are more likely to talk when first arrested and may be willing to do so without exercising their right to have an attorney present even after they have been advised of that right.
"That is a large part of the reason why it is done," he said.
Carlisle agrees.
"It is always fun to be able to talk to someone likely to have committed a crime without a defense attorney whispering in his ear," he said.
But it's not a game, Carlisle said, and officials have a duty to make such arrests if they assist in the investigation and make the best use of scarce resources to protect the public.
Young and Carlisle said there can be many other advantages to not having to charge an individual upon arrest, including allowing more time for investigation without violating requirements for a speedy trial and not having to reveal evidence to defendants, which might jeopardize the investigation.
