The dismissal of criminal charges against a man who had been accused of sexually assaulting a 4-year-old Kalihi girl suggests a "failure in the system" by police and prosecutors, the state public defender said yesterday.

State Public Defender Jack Tonaki, whose office represented Shane Ngirmidol, said in similar cases, police generally release a suspect without filing charges pending further investigation.

But in Ngirmidol's case, he was charged, brought into court for an initial appearance that was widely covered by the media, then released with the charges dropped.

"It smacks of a failure in the system because the case should be evaluated at the earliest stage thoroughly, not only by Honolulu police investigators but also lawyers for the prosecutor's office," Tonaki said.

The dismissal of the sex assault charges means that Ngirmidol is under no legal restraint and could leave Hawai'i or the country. It also raises concerns that authorities either had to release a man whom they believe preyed on a young girl or they held an innocent man behind bars for a week.

Honolulu police spokeswoman Michelle Yu referred all questions to city Prosecutor Peter Carlisle, who declined to comment on the reasons for the dismissal or on Tonaki's remarks. Carlisle said his comments might compromise an ongoing probe.

Ngirmidol, who did not have a permanent address here, could not be reached for comment.

The 31-year-old man was accused of being the stranger who jumped over a chain-link fence and sexually assaulted a young girl in a tool shed in the backyard of her Kalihi home the evening of May 7.

He was arrested at Palama and North King streets a day after the girl was allegedly sexually assaulted. He was in custody, unable to post $50,000 bail until the charges were dropped and he was set free yesterday morning.

Ngirmidol was charged with first-degree sexual assault, which carries a prison term of up to 20 years. He also was charged with third-degree sexual assault and second-degree burglary.

Contrary to earlier media reports, Ngirmidol was not charged with raping the girl, which might have produced DNA evidence of an assailant.

CHARGED THURSDAY

The first-degree sexual assault charge did allege he severely molesting her.

The case against Ngirmidol was outlined in a police affidavit filed in court to justify holding him in custody until he was formally charged on Thursday.

Police are not obligated to disclose all the evidence, just enough to convince a state judge that a defendant probably committed the offenses.

In this case, the affidavit did not indicate there were any witnesses to the crime, other than the 4-year-old girl, who said she was sexually assaulted by a man who also gave her a $1 bill.

The girl's mother reported to police a day later, on May 8, that her daughter told her she was sexually assaulted by a "dark skinned" stranger with "curly hair" who "smelled," the document said.

Police on May 8 talked to second girl. She told officers that on the previous night, she saw a man matching the description provided by the 4-year-old girl at about 7 p.m. near the little girl's home, the affidavit said.

While police were trying to create a composite sketch, a store owner told officers he saw a man who matched the description provided by the second girl, the document said.

Police stopped Ngirmidol, who was still in the area, because he matched the description provided by the store owner and the second girl, the affidavit said.

Ngirmidol voluntarily participated in a field lineup and the 4-year-old girl identified him out of three men, the affidavit said. He was then arrested.

The affidavit did not say what injuries the girl might have suffered, but said she complained about pain.

Tonaki said city prosecutors are not obligated to disclose to his office the reasons for the dismissal and it doesn't mean the case is over. However, he said with the dropping of the charges, "there had to be some deficiency in the evidence."

"There's a tremendous stigma to being accused of such a thing," Tonaki said.

Tonaki said in cases involving complainants this young, authorities generally look for corroborating evidence other than the child's word.

INDICTMENT AN OPTION

The dismissal could be the result of arresting the wrong person or problems with establishing that the sexual assault took place, especially given the age of the girl, the public defender said.

City prosecutors still have the option of refiling charges through an indictment by the O'ahu grand jury at a later date.

Although police can release suspects without charging them pending further investigation, Tonaki said if police had enough evidence for a first-degree sexual assault charge involving a 4-year-old victim, police and prosecutors certainly would not want to release such a suspect.

The dismissal occurred before a scheduled preliminary hearing yesterday. At that hearing, a Honolulu district judge would have to decide whether prosecutors have enough evidence to continue holding Ngirmidol on bail and to send the case to trial.

If the evidence isn't strong enough to establish Ngirmidol probably committed a crime, the judge would be obligated to dismiss the charges.

Ngirmidol's release in the morning canceled the preliminary hearing.

SECOND ARREST-RELEASE

This is the second time within a month that a man was arrested in a sex assault case, then released. On April 19, a man was arrested on suspicion of kidnapping and raping a woman after her car overheated and stalled eight days earlier in Kalihi Kai. The man was released the next day, the same day the woman withdrew her complaint.

In Ngirmidol's case, he not only was arrested, but also was charged before the charges were dropped and he was released.

Residents in the neighborhood where the 4-year-old girl lived were shocked — and confused — about the latest development.

But several also said they still feel their children are safe in the quiet neighborhood, bounded by three elementary schools.

"My kids are safe. I feel safe," said Eduardo Mallare, who was sitting in the front yard of his Palama Street home yesterday.

Mallare has two young children, ages 7 and 10.

Victoria Ward, who lives nearby, said she was confused by the news.

The 79-year-old said she has grandchildren and great-grandchildren who often visit her and play at her home. Since reports of the sexual assault surfaced, she has told them to watch out for strangers.

Bernadette Young, chairwoman of the Kalihi-Palama Neighborhood Board, said she suspects the case has hit the community hard.

The new development, she added, is even more perplexing. "It's terrible, just terrible," Young said. "A lot of families in Kalihi-Palama are old-timers. It's still a good place to live."