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The Honolulu Advertiser

Posted at 12:24 p.m., Wednesday, January 8, 2003

Legislature asked to give prosecutions more leeway

By Walter Wright
Advertiser Staff Writer

Hawai'i law enforcement leaders today asked the Legislature to make accused murderers prove their claims of mental distress when using that as a defense.

The Hawai'i Law Enforcement Coalition, consisting of police chiefs and prosecutors from the four counties along with state Attorney General Mark Bennett and U.S. Attorney Ed Kubo, also asked for easier wiretaps, mandatory felony sentences for assaults on police officers, and procedures to implement last year's constitutional amendment allowing criminal charges to be brought without grand jury or preliminary hearings.

Under current law, prosecutors must essentially disprove an accused murderer's claim of extreme mental or emotional disturbance, Bennett said.

Bennett said Gov. Linda Lingle supports the bills, which is at least a partial shift from the position of former Gov. Ben Cayetano, who in 1999 vetoed similar legislation passed in response to public outrage when Kimberly Pada's attempted-murder conviction was reduced to attempted manslaughter.

The bills discussed today will be submitted to the Legislature by the Lingle administration.

Pada was convicted of shaking her 4-year-old son, Reubyne Buentipo Jr., in August 1997 with such force that she broke blood vessels in his brain.

He is in a persistent vegetative state.

She was sentenced to 6 to 20 years in prison.

The jury convicted Pada of the more serious charge but said the prosecution failed to prove she had not suffered from an extreme mental or emotional disturbance. So Circuit Judge John Lim reduced the offense.

The vetoed bill would have shifted the burden of proof from the prosecution and instead required that defendants prove they suffered such distress.

The group proposed that Hawai'i's little-used wiretap law be brought into line with those in almost every other state by eliminating a requirement for a hearing in which a lawyer appointed to represent the general public can fight against a particular wiretap warrant.

U. S. Attorney Kubo said more than 100 drug cases the federal authorities wanted to hand off to local prosecutors have not been charged under state law because federal wiretaps used for them do not have the "devil's advocate" hearing provision.

Ohio is the only other state to require such a hearing, which has virtually eliminated the use in Hawai'i of state wiretaps in investigation of crystal methamphetamine, which is blamed in many other crimes, ranging from murder to abandonment of children, Kubo said.

An intentional assault on a police officer, now a misdemeanor punishable by 30 days in jail, would become a felony in Hawai'i under another bill backed by the coalition, which said no one should be able to avoid jail time for that offense.

Honolulu Prosecutor Peter Carlisle defended the plan to seek to implement the new "information" criminal -charging law endorsed overwhelmingly by voters in last year's ballot on a constitutional amendment.

It would allow charges to be brought­ as they can be in most other states ­ based on an affidavit by a law enforcement officer, rather than by grand jury or preliminary hearing.

Defense attorneys and others have challenged the amendment on grounds there was insufficient public information and notice about it.