In the domestic violence case involving Sgt. Darren Cachola of the Honolulu Police Department, a police investigation never got started until videotape of the incident was released to the media. By that time, the opportunity to build a case for criminal conviction was badly damaged. In this sense, state Sen. Rosalyn Baker and her co-authors are correct: The grand jury’s decision not to indict Cachola does not vindicate HPD; it demonstrates what happens when police fail to follow proper procedures and "give a pass to one of their own" ("Grand jury decision didn’t vindicate HPD," Star-Advertiser, Island Voices, Oct. 12).
But there is another dimension of this case that deserves scrutiny: the actions of city Prosecutor Keith Kaneshiro, whose public defense of his decision to take Cachola’s case to a grand jury is misleading in three ways.
First, misdemeanor cases like Cachola’s are rarely taken before a grand jury. Kaneshiro claims he took this one because the grand jury can use subpoenas to compel reluctant witnesses to testify under oath. This is true but meretricious, for subpoenas work only as well as the prosecutor wants them to. Kaneshiro’s stress on the grand jury’s subpoena power fails to acknowledge his own office’s crucial role in enabling grand juries to use subpoenas effectively.
Second, the prosecutor is the only legal professional present at a grand jury hearing. There is no judge, there is no defense lawyer, and there is, therefore, no meaningful check on the prosecutor’s power. Hawaii law does allow a "grand jury counsel" to be "at the call of the grand jury," but this role is narrowly circumscribed.
In order to obtain an indictment from a grand jury, the prosecutor must establish probable cause. This means there must be "sufficient evidence to lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that the defendant has committed a crime." In practice, probable cause is an easy threshold of proof for the prosecutor to reach because grand juries function mainly as a rubber stamp. As a classic article in criminology concludes, grand juries are "the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury."
THIRD, prosecutors are not agnostic about indictments. They know what outcome they want before they bring a case to a grand jury — and surely they knew in Cachola’s case, too. It would have been exceptional for the grand jury to deny an earnest effort by prosecutors to obtain an indictment against Cachola, and it would have been even more extraordinary for prosecutors to go to that grand jury without a clear view of their own desired outcome.
The Star-Advertiser’s recent editorial about Cachola’s case fails to apprehend these truths about grand juries ("Bad episode can result in better HPD," Our View, Oct. 12). Prosecutors did not take "the proper path in trying to seek a grand jury indictment" against Cachola. They took a path that enabled them to use the grand jury as a shield against public criticism, and they probably did not seriously seek an indictment at all. Moreover, the grand jury is not an "objective" way of weighing the evidence in criminal cases, as that editorial asserted. It is almost completely dependent on what prosecutors want it to accomplish.
Since the decision not to indict Cachola, Kaneshiro has presented himself to the media as a crusader against domestic violence. We hope he is serious, but considering his office’s dismal record of bringing domestic violence cases to trial and obtaining convictions, we cannot help but wonder.
