By Rob Perez
Advertiser Staff Writer
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After a trial that stretched over two weeks and included testimony from more than a dozen witnesses, the jury decided the fate of attempted-murder defendant Calvin Kam essentially in minutes.
Even before starting deliberations, jurors voiced their fresh-from-the-trial opinions. They all agreed the prosecution had failed to prove its case.
The 12-member panel discussed the evidence for another half-hour or so, but that didn't change anyone's position, according to three of the jurors. The group had too many doubts about the prosecution's version of what happened one night in August 2004 when a man was bashed in the head with a baseball bat outside a Honolulu bar.
In June, the jury found Kam not guilty of the felony charge of attempted murder in the second degree.
"We felt that the case shouldn't even have come to trial," said juror Vernon Kadekaru, a medical repair technician.
The Kam case reflects what has been a nagging problem for City Prosecutor Peter Carlisle. Over the past five years, his office has lost a third of its most serious criminal trials, and that acquittal rate has been on the rise, hitting 36 percent last year, according to statistics compiled by the office at the request of The Advertiser.
"If you see a consistently high rate like that, I think you have a systemic problem," said Robert Rigg, an associate law professor at Drake University in Des Moines, Iowa.
Nationally, the acquittal rate in state courts for felony trials has hovered between 20 percent and 23 percent, according to federal surveys in the 1990s and 2000, the most recent numbers available.
Carlisle said he isn't happy about his office's acquittal rate but prefers to gauge the effectiveness of his staff by another measure.
"My bottom line is the crime rate going down," Carlisle said. "I judge this office's effectiveness by that statistic."
O'ahu's overall crime rate hit a record low in 1999, two years after Carlisle took office, and has been on a downward trend since 2002.
Experts note that any number of factors, from Hawai'i's thriving economy to effective police work, can drive down crime rates. But they say what happens at trial is largely on the shoulders of prosecutors.
The acquittal rate and other statistics compiled for The Advertiser provide the first broad look at how Carlisle's office has fared with felony cases, the most serious crimes.
The number of cases that ended in acquittal was a small fraction — 3 percent — of the 10,712 felony cases that Carlisle's office resolved in the past five years.
In more than 9,700 of the cases, defendants pleaded guilty, sparing taxpayers the cost of a trial. Only 951 cases, or 9 percent, went to trial, a percentage comparable to what is found nationally.
Even though the vast majority of cases are resolved via pleas, the job of trying cases is one of the key responsibilities for a prosecutor's office because trials are where many of the most serious cases are decided, experts say. Prosecutors don't take cases to trial unless they believe they have enough evidence to overcome reasonable doubt before a jury or judge.
Trial outcomes are important enough that Carlisle uses them to determine which deputy prosecutors get the office's annual "Top Gun" performance awards.
In the nearly nine years since Carlisle has been O'ahu's top prosecutor, his office had its best year for acquittals in 1999, when the rate dropped to 26 percent. Since then, that figure has risen each year except one.
TAXPAYERS BEAR COSTS
Like any statistic, the felony data can be interpreted in different ways. Experts caution against drawing conclusions from the numbers alone.
"There's just way too many variables," said Maureen Howard, a University of Washington assistant professor of law and former county prosecutor.
Several professors said it is fair to compare local acquittal rates to the national average — a point Carlisle himself doesn't dispute. But explaining differences would be difficult without examining the many factors that potentially can affect those rates, the professors said.
They said the experience level of trial prosecutors, the screening the cases undergo and how aggressive an office is in taking even weak ones to court are among factors that can affect acquittal and conviction rates.
James Adams, a Drake University law professor, said a prosecutor can boost conviction rates at trial by refusing to plea bargain easy-to-win cases.
"You can fiddle enough with the system to (make the office) look better," said Adams, a former federal prosecutor.
Given the considerable cost of conducting trials, taxpayers should be concerned about any office that has a consistently high acquittal rate, the experts said.
The costs are not just financial. Court time in a crowded judicial system must be set aside, jurors must be convened if it's a jury trial, and witnesses summoned.
"I think they (O'ahu prosecutors) need to sit down and examine why their trial stats aren't as good as they should be," said Ellen Podgor, a Georgia State University law professor, former prosecutor and defense attorney.
Added Rigg, the Drake professor and former public defender: "You don't want to waste the court's time or jurors' time trying cases that should have been settled or dismissed."
STAFF TURNOVER HIGH
Carlisle attributed the high rate partly to defense lawyers whom he said have become more selective in taking the easier-to-defend cases to trial and pleading out the others.
In an effort to cut down on acquittals, Carlisle said, he is continuing to stress more training for deputies and making assignments to best match their strengths.
Of the high acquittal rate, Carlisle said, "You have to be concerned about it. You wonder whether it's trial skills" or other factors.
At the same time, he said, "You're not going to win every case. That's just the way the world works."
The Kam case highlights some issues that should cause concern, defense attorneys say.
Kam had been accused of attacking another man with a baseball bat during a group brawl last August.
In finding him not guilty, jurors cited major flaws in the prosecution's case, including poor police work.
The prosecution had only one witness who said he saw Kam beat the victim. But that witness, a friend of the victim, wasn't believable, three jurors said. He told police the night of the beating that he couldn't identify a suspect, but about six weeks later he changed his story.
"That witness to all of us was not very credible," said juror Rich Mejia, a federal worker.
Victor Bakke, a former prosecutor who represented Kam, estimated the defense spent about $50,000 on the case, but said the cost reached further: Jurors had to take time off work, the trial tied up a courtroom for nearly two weeks, and more than a dozen witnesses had to schedule appearances.
Jim Fulton, a spokesman for the prosecutor's office, said he couldn't give an estimate on what his office spent to prosecute the Kam case.Prosecutors say no single case is representative of the work they do and shouldn't be used to draw any broad conclusions.
Instead, people should look at all the office does, including helping communities and victims deal with crime, to get a sense of its performance and reach, prosecutors and others say. The office, for instance, recently received a national award for its involvement in a program designed to reduce juvenile truancy in 'Ewa.
Some attorneys who left the prosecutor's office in recent years blame the rise in acquittal rates partly on higher-than-normal turnover among deputy prosecutors, especially mid-career ones with good trial skills.
"They've lost a huge amount of experience," said defense attorney Bakke, who resigned from the prosecutor's office in 2000 but still has friends there.
In the past year, 16 deputies have quit, compared with an average of 13 in recent years, Carlisle said. That 16 represents roughly 15 percent of the 100 to 107 attorneys Carlisle said he usually has on staff.
The reasons they resigned varied from getting better jobs — two became judges — to being unhappy with the way the office was run, according to six former deputies, including Myron Takemoto, who said he left in November not because he was disgruntled but to start his own law firm. The others, still in the legal profession, asked not to be named because of fear of retaliation or because they wanted to maintain good relations with the office.
Carlisle attributed the higher turnover partly to Hawai'i's booming economy, which has created more lucrative job opportunities for lawyers.
Because Carlisle has a policy of filling vacancies with attorneys relatively new to the profession, some trials are handled by less-seasoned attorneys.
"We are in many ways a training hospital," he said.
VOTERS APPROVE
In the Kam case, deputy prosecutor George Parrott III was handling his first attempted-murder trial, although he had received a "Top Gun" award last year for his work on other trials.
"The huge holes in this case really should've been addressed pre-trial by the prosecutor," said Bakke, the former prosecutor who represented Kam.
Said juror Mejia, "The prosecutor kind of fumbled a lot of times. He didn't seem like he spent enough time preparing."
Parrott acknowledged that his lack of experience with attempted murder cases may have contributed to the outcome.
"It probably played some factor. I don't deny that," he said.
Parrott said the witness who identified Kam seemed credible because he had no motive to lie. If the witness wanted to falsely accuse someone, others present that night would have made stronger candidates, Parrott said.
He also noted that a police officer who arrived at the scene saw Kam holding a bat in a combative stance.
"In the end it came down to witness credibility," Parrott said. "We had the probable cause, and I had to let the jury decide."
Carlisle said he doesn't necessarily agree that having inexperienced deputies handling trials leads to more acquittals. Attorneys can become proficient at trials early in their careers, he said.
New deputies, however, normally aren't assigned the most serious cases, such as murder trials, for years, according to Carlisle.
He also noted that his office has a sizable group of veteran prosecutors. Twenty-two have at least 15 years of experience, which would have been unheard of years ago, according to Carlisle.
If the ballot box reflects how voters assess Carlisle's performance, he has accumulated good marks so far. After winning his first election in 1996, Carlisle was re-elected unopposed in 2000 and beat his predecessor, Keith Kaneshiro, in 2004 by capturing 63 percent of the vote.
Steve Van Lier Ribbink, 53, is among those with high praise for Carlisle's office.
The medical insurance executive was attacked in 2003 at Waimänalo Beach Park while trying to stop a stranger from beating a dog. Three men were charged, and prosecutors eventually obtained guilty verdicts at trial against all three.
Van Lier Ribbink lauded the prosecutors. "They were very honest, very capable, very professional people, and that gave me faith in that part of the justice system," he said.
Reach Rob Perez at rperez@honoluluadvertiser.com.
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