LIHU'E, Kaua'i — More than two years after a breach of Kaloko Dam let loose a flash flood that killed seven people, the state attorney general has convened a grand jury that might lead to charges in the case.

Former Kaua'i Mayor Maryanne Kusaka has been subpoenaed to appear as a witness, but hasn't been called yet, said her attorney, Mel Miyagi.

The grand jury met at the Kaua'i County Courthouse on Monday and Tuesday, but it was not disclosed when it would meet again. State Attorney General Mark Bennett and his office did not return calls yesterday.

Families of the victims and those with property damage are suing dam owner Jimmy Pflueger, a retired O'ahu auto dealer, and numerous other parties in separate wrongful-death and property-damage lawsuits.

The Kaloko disaster on March 14, 2006, killed seven people who were sleeping in homes below the dam, wiped out two houses and damaged Kuhio Highway, other properties and the offshore reef.

A prominent Honolulu defense attorney said the question of whether there should be criminal charges in the dam failure "is a matter of real complexity and sophistication" that's appropriately handled by a grand jury.

Attorney Brooke Hart said Bennett's other options would be to seek charges through a preliminary hearing or a criminal information, but that a grand jury best fits the circumstances.

The statute of limitations is three to six years, depending on the alleged crime, Hart said. Only murder has no time limit on when charges can be filed.

The grand jury comprises members of the public who review evidence presented by a prosecutor — in this case the attorney general's office — "and determine whether there was probable cause that a crime was committed," Hart said.

Grand jury proceedings are secret to protect a defendant from idle accusations, Hart said.

None of the people purported to have testified before the Kaloko grand jury this week or their attorneys returned calls from The Advertiser.

WORD GETS AROUND

Several attorneys said they became aware of the grand jury proceedings on Wednesday when they were at the courthouse for a hearing on two civil lawsuits on the dam break.

Attorneys for Pflueger had sought Wednesday to postpone the civil trials from next year to 2011. But Fifth Circuit Judge Kathleen Watanabe denied the request and said the first of the two trials will begin Feb. 7, 2009, as scheduled, said Teresa Tico, who is among attorneys representing plaintiffs.

Attorneys for the plaintiffs and defendants in the civil lawsuits said their role in the civil cases makes it inappropriate for them to speak about the grand jury and possible criminal proceedings.

No plaintiffs in the civil lawsuit have been subpoenaed by the attorney general, their attorneys said.

No current employees of the state Department of Land and Natural Resources, which oversees dam safety inspections, had been subpoenaed as of yesterday, DLNR spokeswoman Debbie Ward said.

Generally, 18 to 23 members of the grand jury will be present for each session, Hart said. Multiple sessions could be held to deal with a complex case, he said.

The prosecuting attorney outlines what crime he believes was committed and by whom, and calls witnesses to buttress the case, Hart said.

If grand jurors decide there is probable cause that a crime was committed and that the accused committed it, they issue an indictment. Unless an indictment is issued, the alleged crime and the accused are not known outside the grand jury process, Hart said.

GODBEY REPORT

Kaua'i County cited Pflueger in 1997 for a grading violation near Kaloko Reservoir. The order by Kusaka to "stop all actions involving Mr. Pflueger" was cited in a 2007 investigative report on the Kaloko Dam failure by Special Deputy State Attorney General Robert Godbey as a regulatory shortfall.

Godbey's report also blamed: