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The Honolulu Advertiser
Posted on: Wednesday, March 1, 2006

New trial requests called a success

By Ken Kobayashi
Advertiser Courts Writer


City and state prosecutors were authorized through a 2004 state constitutional amendment to send low-level felony cases to trial by submitting written information to a state judge. This option is in addition to the other two methods of sending a felony case to trial an indictment by a grand jury or a judge's decision at a preliminary hearing. City prosecutors have been using information charging for one year.

Numbers from the prosecutor's office:

228 Cases sent by city prosecutors to state district judges.

224 Cases approved by judges for trial.

4 Cases rejected by judges.

14 Percentage of eligible felony cases sent to trial based on information charging.

10 Percentage of all felony cases sent to trial based on information charging.

965 Witnesses who didn't have to testify at a grand jury or preliminary hearing because their cases were handled through information charging. Witnesses include police officers, other police personnel and victims.

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As a result of a 2004 state constitutional amendment, city prosecutors a year ago today began sending felony cases to trial based on submitting written reports to state judges. Yesterday, city Prosecutor Peter Carlisle called this new method "immensely successful."

He said it has spared victims the trauma of testifying multiple times, put police officers back in the community and allowed his office to file felony charges quicker than waiting for a grand jury to convene.

"It hasn't exceeded our expectations," he said. "It's lived up to them."

Defense lawyers, however, aren't so sure about the new method, also known as information charging or direct filing.

State Public Defender Jack Tonaki said it's still too early to make an assessment. He said the number of cases are too small to make an evaluation. He also questioned the number of witnesses Carlisle said were spared from testifying.

The passage of the amendment and the implementation of the new method was one of Carlisle's top priorities and one of the most sweeping changes in the criminal justice process in years.

Previously, felony cases were sent to trial only if a grand jury during confidential proceedings or a judge at a public preliminary hearing found a reasonable suspicion that the defendant committed the crime.

The amendment authorized the third method of allowing judge's to find "probable cause" based on written reports by police and witnesses.

State lawmakers passed legislation that limited prosecutors' use of the method to certain cases. They include low-level felonies carrying a maximum five-year term and some felonies punishable by up to 10 years. Felonies with 20 year maximums, murders and all sex-assault cases were excluded.

Civil liberty advocates and defense lawyers feared direct filing would take away safeguards against unwarranted prosecutions and might result in longer and costly proceedings with defendants challenging the judge's findings based on documents.

But Carlisle said yesterday the only request to dismiss an information charging case was summarily dismissed.

He said his office worked with Honolulu police and state judges to ensure that the process was "bullet-proof." That meant using direct filing for the "very straight forward" cases, which represent about 14 percent of the felonies eligible for direct filing.

The bulk of those cases involved auto theft, auto break-ins and low-level drug cases, he said.

Neighbor Island and state prosecutors have yet to use direct filing, but his office is willing to share what it learned, Carlisle said.

"It takes a remarkable amount of effort to make sure procedures are in place and properly handled by police, courts and us," he said.

If a project is launched when it's not ready, he cautioned, "it will crash and burn."

The Attorney General's office and Maui prosecutors have expressed interest in how it works, Carlisle said.

He said it's too early to track what happened to the direct filing cases, but said 96 resulted in plea changes to guilty or no contest.

Tonaki said his office hasn't seen any savings for his office in terms of court time with prosecutors still seeking indictments from the grand jury or "probable cause" rulings by judges at preliminary hearings.

He also said in preliminary hearings and grand jury proceedings for cases eligible for direct filing, prosecutors might list a number of potential witnesses, but often need only one or two witnesses. Tonaki suggested that Carlisle's figure of 965 witnesses being spared from testifying would be too high for the 224 cases that were approved.

Carlisle said he will continue using the new method and hopes that in the next year, his office will use direct filing for about 500 cases. Eventually, he hopes his office will use it for almost all of the eligible cases, he said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.