Prosecutors will soon use new way to get cases to trial

By Ken Kobayashi
Advertiser Courts Writer

Honolulu and Neighbor Island prosecutors are on the verge of implementing the most significant change in decades in the way felony defendants are prosecuted in Hawai'i.

City Prosecutor Peter Carlisle says the eventual impact will be huge, not only for victims, witnesses and police, but for the entire court system, because judges and defense attorneys no longer will be tied up in hundreds of preliminary hearings and grand jury proceedings each year.

Some who fear that direct filing might reduce a defendant's protection from unwarranted prosecution, however, aren't sure that the change will save the courts and witnesses time and expense.

But for Waipio Gentry resident Hermione Fernandez, direct filing would be a welcome change.

Every day, prosecution witnesses and police officers sit along the benches outside the courtrooms in Honolulu District Court awaiting their turn to testify at preliminary hearings. The court sometimes handles more than a dozen hearings a day.

On the day she was called, Fernandez, a home childcare provider in charge of five or six children, said she had to tell the parents to make alternative arrangements.

She was told to appear at the courthouse at 1 p.m., but was not called to testify for nearly two hours. Then she identified a 29-year-old Pearl City man as the driver of a stolen car. At the end of the hearing, District Judge Leslie Hayashi ordered the man to face trial on the auto theft charge.

"It's a waste of costs," Fernandez said about spending a chunk of her day at the courthouse.

But some defense lawyers and others say that if defendants don't actually see the prosecution witnesses testify at preliminary hearings or videotapes of grand jury testimony, they may be more likely to contest the charges, increasing the number of trials and undermining any savings of time and costs.

State public defender Jack Tonaki said the case in which Fernandez testified is the type in which defendants may be more likely to plead guilty after they see the prosecution witnesses point them out and hear them testify. The plea prevents a trial, which would be more lengthy than a preliminary hearing, he says.

Nonetheless, Tonaki said, he accepts that the "voters have spoken and the Constitution has been amended," but he said his office will monitor the cases to ensure defendants' constitutional rights are not violated.

Although the constitutional amendment was one of four approved by voters in the general election, it's the one likely to have an immediate and dramatic widespread impact.

Big Island Prosecutor Jay Kimura and Kaua'i Prosecutor Craig De Costa say they also hope to use the direct-filing method before the end of the month. Maui Deputy Prosecutor John Tam says his office is waiting to see how the process works on other islands to ensure their practice is consistent.

Although it's been more than three months since the election, the lag time for implementation isn't unusual.

"The wheels of legal reform always move slowly; erratically, you could say," said University of Hawai'i law professor Jon Van Dyke.

The amendment is the most sweeping change made in the criminal justice process since 1978, when the state Constitution was amended to allow cases to go to trial by preliminary hearings. Before that, the only way to send a case to trial was with a grand jury indictment.

Carlisle said his staff has been talking to Honolulu police and criminal administrative judges about direct filing.

Initially, he said, he plans to file only a limited number of such cases and hopes to begin doing so as early as next week.

"We're going to start off with the simplest of cases," he says. "It's sort of a walk-before-you-run type of thinking."

The Legislature already has adopted the legislation implementing the amendment.

It limits direct filing to Class C felonies (punishable by up to five years in prison) and some Class B felonies (punishable by up to 10 years). It excludes Class A felonies (punishable by 20 years), murders and sexual assaults.

Carlisle estimated that direct filing could apply to up to 70 percent of the 2,000 or so felony cases his prosecutors will file each year. He says in the foreseeable future, he'd like to see his office use direct filing in about 50 percent of all felonies.

He said prosecutors want to see what kind of legal challenges might arise in the initial stages, then will consider increasing the number of direct-filing cases. The initial cases will deal with suspects who aren't in custody and simple cases such as car theft, Carlisle says.

"We're trying to make a system that was unnecessarily cumbersome both efficient and fair," he said.

Tonaki said the impact will depend on how the prosecutors, police and judges handle the direct filing.

"If it can save court time for a number of people, then it will fulfill what it was designed to do," Tonaki said. "Whether that is the case, we'll just have to wait and see."

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.