Posted on: Monday, October 7, 2002

COUNTERPOINT
Phony arrest, prosecution

By Robert M. Rees

The city Prosecutor's Office, often accused of using arrest as an unconstitutional tool for evidentiary fishing expeditions and intimidation, wants more.

Now they are urging us to support a state constitutional amendment, Question No. 3 on the Nov. 5 ballot, that may allow prosecutors to determine on their own — without a judicial hearing or grand jury indictment — when there is probable cause for proceeding to prosecution and trial.

The Prosecutor's Office is not without mischief, and recently provided us yet another example of misuse of arrest. This time the victim was Mike Amii, a city employee and a grassroots organizer for Mayor Jeremy Harris' ill-fated campaign for governor. Amii was arrested on suspicion of "racketeering," or specifically that "he campaigned at two (Harris political) events on city time without taking vacation or leave."

Amii's arrest on July 23 has been well publicized. What hasn't achieved notoriety is that Amii has yet to be charged with a crime. He was released without charges a few hours after his arrest. Exactly two months later, when asked whether charges would be filed, Jim Fulton of the Prosecutor's Office responded, "It's too early to tell. This is still in the investigative phase."

Fulton's statement seems a startling admission that Amii was arrested without the probable cause required by the U.S. and state constitutions. Unless Amii had been writing "Stop me before I campaign again" with soap on mirrors in gas station restrooms, there was no exigency, and no need to make an arrest without plans to proceed immediately to a magistrate to file charges.

In fact, if there was probable cause to arrest Amii, then by definition there was probable cause to go before a magistrate to file charges.

The Prosecutor's Office sees it differently. In a revealing interview with this newspaper just a week prior to Amii's arrest, City Prosecutor Peter Carlisle said to reporter Walter Wright, "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."

Even U.S. Attorney Ed Kubo, who served as a deputy city prosecutor, opined to The Advertiser that arrests without charges can deter others. Yet, as Kubo must know, the very practice he endorses is forbidden by federal code. Federal statutes provide that anyone who is arrested must be brought immediately before a magistrate either to be charged or released. This keeps the prosecutors on their toes.

However, under Hawai'i's flat-footed law, first passed in 1869 to provide for the arrest of drunken sailors so they could be returned intact and uncharged to their ships, an arrestee who is released within 48 hours need never appear before a magistrate.

Civil rights attorney Eric Seitz almost persuaded the Federal Court of Appeals for the 9th Circuit to overturn the statute as a denial of habeas corpus. Instead, the court upheld the law as enforced against drunks while questioning its application in other areas.

Nevertheless, misuse has continued. Seitz recently won a settlement for a teenager who, according to the arresting officer, was arrested "to teach him a lesson."

Then there were the events of Aug. 15, when the HPD arrested Lisa Otsuka on suspicion of promoting prostitution. Otsuka, with alleged ties to the Harris campaign, was questioned for five hours but released uncharged. While she was in detention, however, one of the arresting officers served her with a subpoena to testify before a grand jury investigating Harris' campaign.

The same people who see arrest as a "fun" investigative technique now want to add unsupervised prosecution to their arsenal. Further, to add insult to injury, the Prosecutor's Office has actively campaigned — on city time — for the proposed constitutional amendment.

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