Prosecuting now may be risky, some lawyers say

By Ken Kobayashi
Advertiser Courts Writer

Honolulu criminal defense lawyers, including former prosecutors, say reports by Peter Boy Kema's sister that she saw him dead are compelling, but at the same time would be subject to a defense lawyer's challenges.

They also give mixed reactions on whether Big Island prosecutors have enough evidence to prosecute the case.

The lawyers' remarks come following the disclosure of a report by psychologist Steven Choy that the sister, age 5 at the time, told him in June 1998 that she saw Peter Boy's body on two occasions. Choy reported there was no reason to discount her statement, but reported that the girl also said she thought her brother was alive in Ho-nolulu.

"It's incredibly powerful," said criminal defense lawyer Victor Bakke, a city deputy prosecutor from 1993 to 2000 who handled child abuse cases. "It's moved the case to the next level."

Because Peter Boy is still missing, the statements show that a crime was committed, Bakke said.

William Harrison, a veteran criminal defense lawyer, agreed that the statements can be powerful, but also said that they would be challenged.

Children make compelling witnesses, Harrison said, because jurors tend to believe that kids don't lie or make up stories.

But the concern would be "how much is fantasy and how much is reality and at that age, can they distinguish fantasy from reality," especially if the sister was exposed to media coverage, he said.

The lawyers suggested that it might be risky to open a prosecution based on circumstantial evidence at this point. "You only get one bite of the apple," Harrison said.

Because of state and federal constitutional prohibitions against "double jeopardy" or being tried twice for the same crime, anyone acquitted cannot be retried on the same charges, even if new incriminating evidence turns up.

"It'd be dangerous to prosecute the case at this juncture," Harrison said. "What they want to do is clearly obtain more evidence."

On the other hand, Big Island prosecutors do not have a deadline to meet to file murder charges. Under state law, there is no statute of limitation in murder cases, which means the prosecution can be brought at any time, years or even decades after a death.

"Clearly, there is no need to rush to prosecute someone," Harrison said. "You should be real careful on how you approach this matter."

Howard Luke, another veteran criminal defense attorney and a city deputy prosecutor for about seven years in the 1980s, said prosecutors must believe they have enough evidence for a conviction, not simply enough for "probable cause" that a person probably committed the crime, to launch the prosecution.

"The problem is when there's evidence and it's circumstantial in nature, the prosecuting authority must consider whether the proof is sufficient" for a jury to find the defendant guilty beyond a reasonable doubt, he said.

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