Officials challenge wiretap laws

By Walter Wright
Advertiser Staff Writer

Top Hawai'i law enforcement officials yesterday said the Legislature should remove state wiretap restrictions to help smash crystal methamphetamine rings whose sales have spawned other offenses ranging from murder to child abandonment.

But the American Civil Liberties Union attacked the idea, saying it would invade the strong privacy rights given to Hawai'i citizens by the state Constitution.

The Hawaii Law Enforcement Coalition also asked the Legislature to make assaults on officers a felony instead of a misdemeanor, implement the new constitutional amendment allowing felony cases to be sent to trial without grand jury or preliminary hearings and force accused murderers to prove mental or emotional disturbance to be convicted on reduced manslaughter charges.

At a press conference yesterday attended by top police and prosecutors from all four counties, new Attorney General Mark Bennett said all four measures are backed by Gov. Linda Lingle.

Bennett said the four bills discussed yesterday will be submitted to the Legislature by the Lingle administration, along with other law enforcement bills in a legislative package the governor will present.

Gov. Ben Cayetano in 1999 vetoed a bill passed by the Legislature on the emotional disturbance defense in murder cases.

Senate Judiciary Chairwoman Colleen Hanabusa said last night she expects the emotional disturbance defense bill would pass easily, as would making assault on officers a felony.

But changing Hawai'i wiretap laws will involve strongly held philosophical views about Hawai'i's strong privacy rights, and probably stimulate much debate, she said.

And implementation of the new "information" charging amendment to the constitution is clouded by the fact that the ACLU and others have challenged the validity of the election itself, saying proper procedures weren't followed.

ACLU Legal Director Brent White said yesterday Hawai'i should not further erode privacy rights, which are stronger here than in the rest of the country — especially at a time when civil liberties are being reduced and civil rights curbed by both the war on terrorism and the war on drugs.

Hawai'i and Ohio are the only two states in the nation that require an adversary hearing on a request for a wiretap warrant, a hearing in which the interests of the public are represented by a court-appointed lawyer who can attack the wiretap request.

"They (the appointed lawyers) don't represent the public, we represent the public," Honolulu Prosecutor Peter Carlisle said yesterday, all but drawing cheers from the assembled police and prosecution officials at the press conference.

White countered yesterday that "Peter Carlisle is opposed to adversary hearings on all sorts of issues where he would prefer the prosecution can simply have its way."

U.S. Attorney Ed Kubo said the restriction on Hawai'i wiretaps has meant more than 100 drug cases federal authorities wanted to hand off to local prosecutors could not be charged under state law because federal wiretaps used for them do not have the adversary hearing provision.

Kubo said those cases did not meet federal thresholds for prosecution or were not covered by federal laws.

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.

Making defendants prove their emotional distress if they use it as a defense has already been approved by the Legislature in 1999 in response to the public's outrage when Kimberly Pada was found guilty of attempted manslaughter of her 4-year-old son, Reubyne Buentipo Jr.

A Circuit Court jury found Pada guilty of the attempted murder charge, but the panel could not unanimously agree that the prosecution had disproved Pada's mental and emotional distress. John Lim, then a Circuit Court judge, now a state appeals court judge, declared that the jury's verdict meant Pada was convicted of the lesser offense of attempted manslaughter.

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

The bill vetoed by Cayetano, like the new proposal, would have shifted the burden of proof from the prosecution and instead required that defendants prove they suffered such distress.

Reach Walter Wright at wwright@honoluluadvertiser.com or 525-8054.