Firebugs stymie prosecutors
By Karen Blakeman
Advertiser Staff Writer
By Karen Blakeman
Last year, after arsonists set more than 700 brushfires on O'ahu, charring 8,000 acres, endangering homes and lives, taxing resources and leaving behind weeks of blowing ash, police arrested seven people — a record year for brushfire arrests.
Justice's reach fell short, however, when it came to prosecuting those cases.
No adults were prosecuted under state law for starting brushfires, and none have been for the past decade, prosecutors say. Only one juvenile came close to adjudication in the state's family court last year, and the only person to face trial is being prosecuted in federal court.
The shortfall may lie in Hawai'i's lack of an arson law, authorities say. Maliciously starting a grass fire — endangering firefighters, keeping residents from their homes and causing those with breathing disorders to become ill — is not sufficient for prosecution. Under Hawai'i law, prosecutors say they must show that someone has suffered a loss of property to go after firebugs.
"They're charged as criminal property damage," said Honolulu City and County Prosecutor Peter Carlisle. "And there has been a general issue ... that setting a brushfire might not qualify as damage to property.
"Will juries think that scorched earth changes the value of a property?"
Because prosecutors were afraid the answer would be no, Carlisle said, not one adult — last summer or in the institutional memory of his office — has been prosecuted in state courts for starting brushfires.
"Maybe we could bring the property owner in to testify that because of the burned grass, the property is harder to sell?" Carlisle mused. "The only way to know is to litigate it."
He said his office would make a point of trying to do that in the future. Meanwhile, he and other public officials said they would support new arson legislation to make prosecution of brushfire cases easier.
Outgoing Fire Chief Attilio Leonardi, Deputy Honolulu Police Chief Glen Kajiyama and Carlisle said their offices want to see legislation that would make it easier to prosecute brushfire arsonists.
"I would like to see our firefighters and police officers protected out there," Kajiyama said. "I would like to see some sort of consequences."
State Senate Majority Leader Colleen Hanabusa, whose district includes Nanakuli and Makaha, said she was concerned when she learned that the necessity of showing financial damage to property might be getting in the way of bringing brushfire arsonists to justice.
"Then that requires and should warrant a change in the law to something other than criminal property damage," she said when told what Carlisle had said. "We do have to change it, but then the police still have to go out there and enforce it and the prosecutor has got to take action once it is done. The police and prosecutors have got to meet us halfway."
The public must also remain vigilant in watching for suspicious activity, she said.
Word of the lack of prosecutions has left some Island residents frustrated.
Richard Soo, a retired Honolulu fire captain from a firefighting family, has spent a lifetime watching co-workers and relatives risk their lives battling grass fires on the edges of cliffs and in remote waterless areas. He said he was disheartened by the lack of prosecutions last year.
"Each year we've asked the public to assist us," he said. "Come forward, call the police, report any suspicious activity or illegal use of fireworks. And last year it felt so good to see that people had come forward, and that some people had been caught.
"I am dumbfounded that they have not been processed through the legal system."
Black Hoohuli, head custodian at Nanakuli High and Intermediate School and longtime resident of the valley, said living through last summer's rash of brushfires made him a believer in consequences for people who set fires.
"They had to close the school," he said. "The smoke was ringing the valley and there were no trade winds, so the smoke stayed. Some people had to move out of their own homes. It was terrible. There ought to be some sort of punishment."
In the case of juvenile arsonists, Hoohuli said, the penalties should be extended to parents.
Cynthia Rezentes, chairwoman of the Wai'anae Coast Neighborhood Board, said she thinks brushfire arson has not been taken seriously in Hawai'i.
"People think it is harmless — a rite of passage," she said. "But what about the people who couldn't breathe? What about those people who couldn't leave their homes because they were afraid they would burn down? I mean, when you light a field afire, there is no guarantee it is going to stay in that field."
The arrests represented change in a positive direction, she said, but the law needs to deal with the perpetrators.
"They should be held accountable," she said. "We were lucky last year. There is no guarantee we will stay lucky."
ARRESTS WERE A START
Last year, as the costs of fighting the fires escalated into the hundreds of thousands of dollars, police and residents stepped up to help firefighters fight the problem.
"I want to give a lot of credit to Boisse Correa," Fire Chief Leonardi said of the city's police chief. "He created a task force and really went all out last summer, I mean, seven arrests? We've never had more than one or two arrests in a year, let alone seven."
Kajiyama said the public responded well to requests for information made by police and firefighters.
"We asked them to be our eyes and ears," he said. "We asked them to report anything unusual, and that is how we got a lot of our arrests — the calls came in from the citizens."
Tracking criminal cases involving brushfires and comparing one year to the next is difficult in Hawai'i.
"We don't track them," said Honolulu Police Capt. Frank Fujii. The brushfire cases, he said, are lumped in with thousands of other cases classified as criminal property damage.
Honolulu police Detective Eric Yiu, who investigates fire cases, said that although no adults were prosecuted in state court, he recalls one juvenile, arrested in connection with a fire in May, was taken to Carlisle's office for prosecution, and that case was "pending family court."
Carlisle said no information could be released about the boy's case because state law prohibits prosecutors and other court officials from revealing information about juveniles.
Another case, that of Willolyn Kapena Jose, a 27-year-old Nanakuli woman alleged to have been carrying a bottle of gasoline with a wick in her car on Aug. 7, the day after brushfires scorched hundreds of acres in Honokai Hale and Ko Olina, is being handled by federal prosecutors.
Jose is scheduled to stand trial in February for possessing an unregistered destructive device — a Molotov cocktail.
"Title 26 of the Internal Revenue Code," said Ron Johnson, major crimes section chief for the U.S. attorney's office in Honolulu. "Taxation, basically. It's what tripped up Al Capone."
City and county authorities often bring cases to federal agencies or prosecutors if they think federal laws are more likely to fit the infraction, Johnson said.
The practice worked with Jose.
"We had the statute that fit the circumstance," he said.
Federal authorities did not prosecute two other cases Honolulu police said they had turned over to federal agencies: a juvenile and a 19-year-old 'Ewa Beach man, both accused of using fireworks to start brushfires on or near federal land in Kalaeloa.
Navy Criminal Investigative Services denied knowledge of the cases, said Agnes Tauyan, a Navy spokeswoman, and Johnson said they were not brought by other agencies to his office.
"Not fireworks," Johnson said. "We wouldn't have been interested."
Wai'anae resident Frank Slocum, a retired Secret Service agent who predicted last summer that few of those arrested for the brushfires would face charges, said last week he didn't think recollections of the 2005 brushfires would hold long enough to get helpful legislation passed.
"Memories are short," Slocum said.
Reach Karen Blakeman at firstname.lastname@example.org.