Prosecutors statewide are taking a new tack in navigating uncharted waters to prevent a wave of pretrial detainees from being released when their cases involving serious crimes are dismissed due to a recent Hawaii Supreme Court ruling.

Scott DeAngelo’s murder trial was set for Dec. 5, but his case was dismissed Oct. 10 in the wake of September’s high court ruling in State v. Obrero requiring a grand jury indictment for people accused of serious crimes.

DeAngelo was charged with second-degree murder in the death of a man whose burned body was found in February in a Pearl City apartment fire.

Prosecutors brought charges against DeAngelo in a preliminary hearing before a judge rather than through a grand jury, leading to the dismissal. But at prosecutors’ request, rather than releasing him, 1st Circuit Judge Kevin Souza ordered DeAngelo to be held without bail for up to 90 days until he can be recharged by indictment.

The DeAngelo case is one of several in the past two weeks in which judges have granted prosecutors’ request in cases dismissed under the Obrero ruling. Hawaii Rules for Penal Procedure Rule 12(g) allows defendants “to be held in custody or his or her bail be continued for a specified time pending the filing of a new charge.”

“The Honolulu Prosecutor’s Office is fighting hard to keep behind bars those violent and dangerous offenders whose cases have been dismissed as a result of the State v. Obrero case,” Honolulu Prosecutor Steve Alm said in a written response to a request for comment by the Honolulu Star-Advertiser. He added that Rule 12(g) is one of the mechanisms being used to hold defendants “while we work to indict them.”

But defense attorneys are calling the tactic of jailing someone without criminal charges for up to three months a violation of a person’s constitutional rights.

“Thus far the Judiciary has been going along with that and allowing the state to keep the clients in custody while the state makes efforts to indict them,” said Deputy Public Defender Steven Nichols, who represents DeAngelo.

He said Souza was one of three judges he has seen in the past two weeks approve the 90-day detention.

Nichols said the Hawaii State Constitution authorizes the Hawaii Rules for Penal Procedure “to effect policies, procedures and processes” and “mentions nothing of it to effect substantive rights,” such as detainment.

“Our arguments have been that it is unconstitutional, especially once the case has been dismissed,” he said. “Any finding of probable cause is attached (to the original case) and does not carry over to another criminal number.

“It’s sort of what Obrero is about. Court rules cannot trump statutes and the constitution. The government is relying on a court rule to detain individuals where there is no case.”

Nichols said the Office of the Public Defender is considering whether to bring the matter before the state Supreme Court, at least to get some clarity.

Defense lawyer Myles Breiner said that under the law, a person must be charged within 48 hours of being detained, yet prosecutors are asking the courts to detain uncharged suspects for 90 days without bail.

“That’s 45 times the difference,” he said.

He said the 90 days buys time for prosecutors to “get their act together” and tighten their cases.

“I’m deeply troubled that the prosecutors would come up with a formula that would make an exception to the Rule 48 speedy trial act.”

Breiner said he has an Obrero-type case coming up today before Souza and plans to oppose any request for a 90-day detention because “it flies in the face of our constitution.”

Alm said the court decides matters on a case-by-case basis, and “not all of them may be granted. But we remain hopeful that our judges recognize the importance of keeping these defendants in custody while we attempt to comply with the new requirements imposed by Obrero.”

“We have been diligently making these requests for the most dangerous defendants and are pleased that the court granted our request to hold Scott DeAngelo while we present his case to the grand jury,” he said.

In the DeAngelo case, Souza wrote in his findings and conclusions of law that the courts were unable to conduct grand jury proceedings in about 14 of the past 30 months due to COVID-19 restrictions.

Prosecutors in other counties are also using Rule 12(g) in Obrero cases.

The Hawaii County Office of the Prosecuting Attorney has had a few 12(g) motions, but it is unclear how judges there will rule since no decisions have been rendered yet, according to Hawaii County Prosecutor Kelden Waltjen.

“Obrero continues to be a concern for prosecutors statewide, as we continue to juggle our influx of felony cases with the number of Obrero cases that have to be indicted,” he said.

But it also has been particularly challenging for his office to schedule cases before a grand jury, given travel distances on Hawaii island.

“We have to make the best use of the grand jury,” Waltjen said. “Sometimes we put a Kona case on a Hilo grand jury,” and vice versa.

“It presents concerns for witnesses and victims who have to coordinate their travel across the island,” he said. “With Obrero, at times when we have a preliminary in Hilo, then we could have a grand jury indictment in Kona.”

Matt Dvonch, spokesperson for the Honolulu Department of the Prosecuting Attorney, said having to testify in sensitive cases such as those involving sexual assault can be especially difficult for victims.

Waltjen noted that when serious crimes are involved, prosecutors aren’t going to wait 90 days before going to a grand jury and will seek an indictment as soon as they can.

He said the 40-year practice of charging by complaint and preliminary hearing, along with information charging and grand jury indictments, has been sustainable, but prosecutors “are having to prioritize what’s important and balance incoming cases with cases impacted by Obrero.”

“I really hope the Legislature convenes a special session to address this issue … to ensure public safety,” Waltjen said.

To deal with the overload of cases, the Judiciary began convening an additional Oahu grand jury session on Mondays. This is in addition to one held Wednesdays and two on Fridays.

Maui Prosecutor Andrew Martin said his office has used Rule 12(g) in five cases. Three were granted, but in all three an indictment was quickly forthcoming. In the two cases that were denied, the defendants were being held in unrelated cases.