Nov. 18 – The Hawaii Supreme Court on Thursday issued an opinion in Deangelo v. Souza that allows courts to continue to order the detention of individuals without charge in so-called “obrero” cases, but appears to have dropped from the 90th -day detention discouraged maximum holding period in favor of 60 days.
The Hawaii Supreme Court on Thursday issued an opinion in Deangelo v. Souza that allows courts to continue to order detention without charge in so-called “obrero” cases, but appears to favor the 90-day maximum sentence discourage from 60 days.
Honolulu District Attorney Steve Alm is pleased with the decision, calling it a reasonable balance of a defendant’s rights with public safety. But defenders say it fails to uphold the constitutional rights of people being detained for months without charge and fear the opinion opens the floodgates to abuse.
A Sept. 8 decision by the same Supreme Court in State v. Obrero caused an uproar by allowing the dismissal of hundreds of specific types of offenses that had been indicted by a preliminary hearing and a judge finding probable cause — a practice common in Hawaii for 40 years — and not by grand jury indictment.
The Obrero decision prompted prosecutors across the state to ask judges to hold defendants for up to 90 days, but in some cases 60 days, until the defendants are charged.
They successfully applied Rule 12(g), which allows a judge who dismisses a case on the basis of a prosecution error to detain an accused for a specified period of time while the state reloads the case.
The Scott Deangelo murder case was one of the first of its kind, with a judge dismissing the case on the basis of Obrero and then ordering him to serve up to 90 days in prison without bail.
“We are disappointed that the Supreme Court finds it constitutional to incarcerate an individual who has not been charged or convicted,” said Assistant Public Defender Jon Ikenaga, who filed a petition in the Supreme Court Oct. 16 in Deangelo v. Justice Kevin Souza submitted.
“The vast majority of recent dismissals have resulted from prosecutors failing to comply with legal and jurisdictional requirements in bringing charges. It is unfair and unjust to hold our clients in custody because of mistakes made by the prosecutor.”
Ikenaga said his office is seeking clarity on the practice, saying rule 12(g) is unconstitutional and violates the Fourth Amendment, which protects improper seizures, citing state statutes that require an arrested person to return within 48 hours of a Judges must be produced for investigation Arrest.
Deangelo’s Opinion states that rule 12(g) is a procedural rule and does not override a substantive right or violate the Fourth Amendment. A probable cause was determined in Deangelo’s case and he was charged via complaint and a preliminary hearing. The dismissal was only due to the error in the initiation of the procedure.
However, Deangelo’s statement does not provide a limit, only saying that several states have adopted a range of one to 60 days and that some states have said that a certain time must be reasonable.
Criminal defense attorney Myles Breiner said: “I’m frankly disappointed with what I’ve read.”
“If a charge is dismissed and the person is released, they have no remedy. They are in prison without charge under the guise of public safety.”
He said the opinion does not limit how long they can hold someone without charge, saying only that a judge can do what is appropriate.
“What are these rules and is there a cap? It’s just a recommendation here. There is no upper limit. It’s a guide without drawing a line in the sand.
“If the court finds that half the states do and half the states don’t, that 60 days is appropriate and 90 days is not, that is arbitrary and capricious.”
“In France it is unlimited. You can be held for years without charge if you are in custody.”
He said the danger is that a judge may be unreasonable and “it could encourage law enforcement to jail people without charge.” I see it being abused.”
The Supreme Court did not rule on the 90-day retention, saying, “Because the State indicted Deangelo before the 12(g) order expired, we do not feel it necessary to determine whether the district court abused its discretion in setting 90 days Has. “
Souza, who made the decision in the Deangelo case, declined to respond to the Supreme Court petition and did not respond to a request for comment from the Honolulu Star-Advertiser on Thursday’s decision.
Backlog is a serious problem, and as of October 31, 92 defendants affected by the Obrero decision were in custody on Oahu, not all on Class A or Class B felonies.
They range from 22 counts of suspected murder or attempted murder to one count of attempted second-degree theft.
Alm said, “We will do our best to prosecute cases dismissed under Obrero within 60 days.”
But he will prioritize incoming cases for grand jury indictments first.
He said his office had reduced 174 cases affected by Obrero to 130, and now only 92 remain in custody. Some have been charged; others have settlement agreements.
Justice added another grand jury session for a total of four on Oahu later in the week.
Alm said there could be a three-week gap when the 2022 grand juries are released until new 2023 juries are installed.
The judiciary said there will be no loophole as some grand juries were set up later in January 2022 and they have to serve a full year.
The state legislature failed to call a special session to address Obrero.
Jacob Aki, Senate communications director, said it appears from the Senate side that the Legislature will wait until the next session, which begins Jan. 18, to deal with Obrero. “The judiciary chief is in talks with relevant stakeholders, the district attorneys, to introduce a bill to resolve the Obrero concern,” he said.