Rule sets murder defendant free
By David Waite
Advertiser Courts Writer
A city deputy prosecutor conceded during a Circuit Court hearing Wednesday that the prosecution waited too long to bring a murder defendant to trial, resulting in charges against the man being dismissed.
The case of Harvey Ababa, who spent the past four years in jail waiting for his trial to begin only to have the charges against him dismissed, amounts to an "extremely unusual and rare" situation, an official with the state public defender's office said yesterday.
H. ABABA
Chief Deputy Public Defender Dean Yamashiro said his office does not believe there are many — if any — other individuals who have been detained for long periods in a state jail while waiting for their trials to start.
Circuit Judge Marcia Waldorf dismissed criminal charges against Ababa, saying the prosecution had failed to bring Ababa to trial within the 180-day period prescribed by the Hawaii Rules for Penal Procedure.
But it wasn't because he waited more than four years for his trial. A sizable portion of that time was taken up by appeals to the Hawai'i Intermediate Court of Appeals and the Hawai'i Supreme Court. Under the law, that period isn't counted under the 180-day requirement.
The prosecutors failed to bring the case within 180 days after the appeals were decided last year, according to the judge's ruling.
The Prosecutor's Office has said it plans to reinstate the charges against Ababa as quickly as possible, probably through a grand jury indictment, perhaps as early as next week.
Ababa's lawyer, state Deputy Public Defender Todd Eddins, said yesterday that he had been in contact with Ababa as of Thursday.
"He's spending quality time with his family, and he realizes the charges are likely to be reinstated," Eddins said.
"For someone who has been in jail for four years straight, one week of family time is like a year."
Ababa and his cousin, Rodrigo Ababa, were charged with the fatal shooting of Richard Tambua, 22, and wounding of Donald Kamaka on Dec. 31, 1999, during a confrontation between two groups of men in Kapalama. Rodrigo Ababa pleaded guilty to manslaughter in 2000.
Harvey Ababa has been jailed at the O'ahu Community Correctional Center since his arrest on Jan. 3, 2000, on second-degree murder and attempted first-degree murder charges.
Yamashiro said what makes the case so unusual was that the 180-day clock was suspended twice because of two different appeals, one filed with the appeals court and the other to the high court.
At the time he was arrested, Harvey Ababa made statements about the shooting to police investigators. Circuit Judge Michael Town ruled in 2000 that those statements could not be used by the prosecution in its case against Ababa.
The Intermediate Court of Appeals reversed Town's ruling and sided with the prosecution. The defense appealed the Intermediate Court's ruling, and in May 2003, the state Supreme Court issued a ruling that Town was correct in "suppressing" Ababa's statements.
Earle Partington, a Honolulu attorney specializing in criminal defense, said that while it may seem odd, the requirement that a criminal defendant be brought to trial within 180 days is suspended when an "interlocutory appeal" is filed, no matter which side brings the appeal.
An interlocutory appeal challenges a pretrial motion. Ordinarily, appeals are filed after a verdict in the case has been reached.
Typically, when statements made by a criminal defendant are thrown out of court, the prosecution goes ahead with the trial if it has sufficient evidence, Yamashiro said.
The 180-day clock began ticking again after the Supreme Court issued its ruling on May 22, 2003.
At a hearing June 26, acting Circuit Court Judge Barbara Richardson set a new trial date of Jan. 5, 2004, although Ababa's lawyer, Eddins, strenuously objected and asked that the trial be scheduled before the end of 2003.
According to a transcript of the June 26 hearing, Eddins several times said pushing the trial week back to January of the new year would likely result in a violation of the 180-day rule.
But city Deputy Prosecutor Russell Uehara told Richardson that his schedule was filled with murder and attempted-murder trials throughout the remaining months of 2003, and Richardson left the Jan. 5, 2004, date in place, according to court records.
At the hearing on Wednesday, Judge Waldorf agreed with Eddins that the 180-day period had lapsed. Uehara argued that part of the reason the trial had to be pushed back to 2004 was Eddins' being unavailable for nearly two months between June and December last year because of Eddins' trial commitments.
Nonetheless, Uehara "conceded" that Ababa had not been brought to trial within the specified period, according to court records.
Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.
