A draft bill clarifying how prosecutors may charge suspects with felonies in Hawaii would prohibit shopping for favorable grand jury panels and judges if initial attempts to charge a suspect fail.

Prosecutors could not turn to a judge and ask the official to find probable cause if a grand jury rejects their request for charges, and vice versa, state Sen. Karl Rhoads, chair of the Senate Committee on the Judiciary, told the Honolulu Star-Advertiser.

Rhoads is working with state Rep. Mark Nakashima, chair of the House Committee on Judiciary and Hawaiian Affairs, on the bill to find a version that representatives and senators can agree upon should the Senate secure the two-thirds majority needed to call a special session of the state Legislature.

Gov. David Ige has said he will not unilaterally call the Legislature back into session unless they have solid agreement on a bill.

However, as of Monday no agreement on the language had been reached, and comments continue to come in, as have a couple of requests for changes, said Rhoads.

“At this point I do not know whether an agreement will be reached,” said Rhoads. “If no agreement is reached, I do not believe we will go back in (to special session).”

The draft proposal would bring back the process used before the Hawaii Supreme Court ruled in State v. Richard Obrero and allow two paths to charge the most serious crimes. If the bill passes both chambers and is signed by the governor, prosecutors will be able to charge suspects through a hearing before a judge, followed by a criminal complaint or by taking the case to a grand jury for indictment.

The Obrero decision leaves prosecutors only one course to charge serious crimes, presenting evidence to a grand jury.

“The legislature further finds that repeated attempts at prosecuting the same felony is not contemplated by the constitution,” the bill states. “Whether by presenting the allegations to a different grand jury after a prior grand jury did not find sufficient evidence for an indictment or by using both the grand jury and preliminary hearing process after the first forum rejected the evidence, the prosecution should not have multiple opportunities to present the same evidence.”

Attorney Megan Kau, a onetime candidate for prosecuting attorney and a former deputy prosecutor, told the Star-Advertiser that the draft bill appears to be a check on prosecutorial power in Hawaii. Prosecutors would routinely “forum shop” for judges or grand jury panels that might look more favorably on the evidence presented and find probable cause to charge suspects.

“The Legislature is saying, ‘No, you don’t get to do that anymore. It’s not fair to the community, and it’s not fair for the suspect,’” Kau said.

Kau cited Honolulu Prosecutor Steve Alm’s decision in 2021 to charge three Hono­lulu police officers with murder and attempted murder after a grand jury failed to find probable cause to charge them in connection with the April 5, 2021, fatal shooting of 16-year-old Iremamber Sykap after an alleged crime spree and high-speed pursuit through the streets of Honolulu.

“That case is on their minds, and they probably believed those police officers should not have been charged by a complaint after a grand jury didn’t find probable cause,” said Kau.”They are putting this into statute because they don’t trust the prosecutor’s office to do justice.”

Honolulu defense Attorney Thomas Otake told the Star-Advertiser in a statement that while the draft bill includes “important language” that would preclude a prosecutor from trying a second time to bring a case after a first attempt failed, “it should go further and at a minimum still require a grand jury indictment for Class A Felonies.”

“That would be a compromise that makes sense,” Otake said. “The requirement of a grand jury indictment has always been a pillar of our criminal justice system that balanced the power of the prosecutor with oversight by the people. Taking away the protections afforded to all citizens by the grand jury system should not be rushed through a special session because the Prosecutor’s Office negligently created a backlog of illegally brought cases. The issue deserves more thoughtful debate and examination than that.”

Kauai Prosecuting Attorney Rebecca Like’s office supports Rhoads’ draft bill, except the inclusion of the term “new evidence” that would allow prosecutors to go find another forum to charge a suspect.

“The concern addressed in Justice (Paula A.) Nakayama’s concurrence (pursuing a preliminary hearing after being unsuccessful before the grand jury) is of no concern to our Office as that’s not a process our Office has engaged in under my leadership, nor my predecessor’s (Justin Kollar). We do not have our victims and witnesses testify multiple times at a probable cause hearing, without the existence of additional evidence,” explained Like in a letter to the state Senate Committee on Judiciary obtained by the Star-Advertiser. “Justice Nakayama, in her concurring opinion … specifies, ‘The State may return to the grand jury and obtain an indictment if it can present additional evidence.’”

In the body of that section, she notes that she agreed with Obrero that “if a grand jury fails to find probable cause to charge a suspect, the state could subsequently obtain an indictment based, in part, on ‘additional evidence.’ As such, there is no need for the legislature to adopt the stricter standard of ‘new evidence’ — evidence that the State did not possess at the time of the first grand jury hearing.”

Like maintains that a viable preliminary hearing process is critical to “ensure the public safety of Kauai’s citizens.”

Andrew Martin, Maui County prosecuting attorney, told the Star-Advertiser in a statement that his office is providing comments on the draft bill only to members of the House and Senate.

“We greatly appreciate their consideration of a special session in order to address the Obrero decision,” Martin said.

Hawaii County Prosecuting Attorney Kelden Waltjen told the Star-Advertiser in a statement that he is glad that the Legislature understands the urgency to convene a special session to ensure public safety and restore prosecutors’ ability to initiate felony criminal proceedings by way of the complaint and preliminary hearing process.

“We are consulting with the other county prosecutors and our legislators,” said Waltjen said. “We remain hopeful that we can reach an agreement on a proposed legislative fix.”

Alm told the Star-Advertiser in a statement that he appreciates Rhoads’ and his legislative staff’s work and remains “hopeful that they will meet in special session soon.”

“Enacting this legislation is of utmost importance to the Honolulu Prosecutor’s Office as it will safeguard the public and restore life to the constitutional provision passed by the Legislature and the people of Hawaii 40 years ago,” Alm said. “We are generally supportive of the draft bill and are working closely with the neighbor island prosecutors and the Attorney General’s office to ensure that there will be no unintended consequences from its enactment.”

Obrero Draft Amend 801-1-092922 by Honolulu Star-Advertiser on Scribd