Raynette Mole, fighting back tears, is blunt with her answer.

If prosecutors and others had done their job, she said, her son still would be alive.

“They failed the people,” Mole said.

She was referring to a driving-under-the-influence charge against Sierra Burns that a state judge dismissed in October 2016 after prosecutors requested a continuance, citing court congestion, according to online records.

The prosecution made the request just 2-1/2 weeks before a deadline to begin the trial was to lapse.

The judge denied the request and dismissed the case without prejudice, meaning prosecutors were free to refile the misdemeanor charge. They never did.

Just over a year later, Daniel Mole, 23, and his friend Jonah Ragsdale, 21, were fatally struck by a vehicle in Makaha while repairing a tire at night on the Farrington Highway shoulder. The driver left the scene of the February crash.

Burns has since been charged with two counts of negligent homicide, allegedly for causing the men’s deaths while driving under the influence; two counts of failure to render aid; and a charge related to an accident involving serious injury or death. She has pleaded not guilty.

Had Burns been prosecuted for the 2016 charge, Mole said, her son would still be alive.

“She wouldn’t be driving,” the 61-year-old Nanakuli resident said. “This wouldn’t have happened.”

Richard Mole, 46, Daniel’s father and Raynette’s ex-husband, is not quite as certain.

“I’m not God,” he said, “but I’m pretty sure anything that would have happened that would have held her accountable at the time would affect today.”

The Burns case has focused greater attention on the problem of court congestion, particularly as it affects DUI cases on Oahu.

Over the past decade the number of misdemeanor DUI cases has increased 20 percent in the 1st Circuit, which covers Oahu. Since 2003 the Oahu DUI cases have more than doubled, hitting nearly 4,900 last year.

Yet the number of Oahu District Court judges, who hear misdemeanor cases, has not increased since the early 1980s, according to the Judiciary.

At the same time, more DUI trials are being held, exacerbating the congestion problem.

More cases, more strain

Honolulu prosecutors are reluctant to plea-bargain DUI cases. And changes in case law over the past decade regarding use of blood-alcohol tests and other issues have made securing DUI convictions tougher for the prosecution.

For those and other reasons, many defense attorneys advise their clients to go to trial.

That has put a strain on the courts, with some cases having to be pushed back a month or more simply because of a lack of judges or courtrooms.

When the Honolulu Star-Advertiser sat in on a morning DUI calendar on the 10th floor of the Alakea Street courthouse in late April, a congested docket prompted Judge William Domingo to postpone three cases in which the prosecution and defense said they were ready for trial. The judge pored over a calendar on his computer screen to find where he could squeeze in the three cases. One was pushed to the following week, but two were moved to late June, a two-month delay.

As scenarios like this play out again and again, police officers and other witnesses wait idly in the courthouse hallway for their cases to be called.

Said defense attorney Jonathan Burge, who thinks more District Court judges are needed, “You’re sitting around all day waiting your turn.”

When that turn comes it’s not uncommon for the case to be delayed.

“Right now it’s the rule rather than the exception,” Burge said of continuances. “They’re handed out like water in virtually every case.”

The Garcia case

Take the one against Veronica Garcia, who was charged with DUI and speeding in October 2016. She pleaded not guilty.

Over the next 14 months, her case was continued eight times, with the first seven coming at the request of the defense, according to online court minutes. One of those requests was due to the defense’s anticipation of court congestion. Seven cases were ready for trial that day.

After the seven defense-requested continuances, the prosecution sought its first one in December 2017 because a key witness, a police officer, was not present and could not be located, the minutes say. The request came about a month and a half before the so-called Rule 48 deadline, which requires trials to start within six months.

On Dec. 28 the judge denied the request and dismissed the case without prejudice, giving prosecutors an opportunity to refile the charges. They did not.

When granting continuances, judges say they follow the law and Constitution, which requires due process, including upholding defendants’ rights. If a defendant seeks a continuance to retain a lawyer, for instance, the judge will grant it.

“We are dedicated and concerned about making sure people get their day in court in a timely and just manner,” said Judge R. Mark Browning, chief judge of the 1st Circuit.

Toward that end the Judiciary has taken multiple steps in recent years to ease District Court congestion.

It installed courtroom phones that are directly linked to the Public Defender’s Office to enable eligible defendants to make appointments while they still are in court. Such a practice can prevent potential delays — defendants in the past often would appear at hearings saying they had yet to make their appointments, necessitating a continuance — and allows for more timely scheduling of trials.

The Judiciary also reserves a Kapo­lei courtroom on Fridays for overflow criminal cases for DUI and other charges.

And judges on the 10th floor of the Alakea courthouse, as part of the daily juggling acts throughout the system, will sometimes send cases to the seventh floor if judges there finish their calendars early.

District Court, like the others, also makes use of per-diem judges.

“We are always looking for ways to make things more efficient,” Browning said.

Victor Bakke, a former Honolulu prosecutor and now a criminal defense attorney, said the congestion problem with DUI cases relates directly to his former employer’s policy of not plea-bargaining.

“That is the No. 1 problem,” Bakke said. “It’s all political.”

He said prosecutors don’t want to deal with the public fallout if a defendant were allowed to plea to a lesser charge, then kills someone while driving drunk. Instead of negotiating plea deals and helping the congestion problem, the prosecution would rather see cases drag out, even to the point of dismissal, according to Bakke.

Yet prosecutors are willing to plea-bargain in murder, sex assault and other serious cases, he added. “It’s absolutely ridiculous.”

But Prosecutor Keith Kaneshiro said his office’s refusal to plea- bargain DUIs except in rare instances is motivated by only one factor. “It boils down to two words: public safety,” he said.

Despite the congestion problem, some defense attorneys acknowledge that some of their colleagues will do whatever is in their clients’ best interests as long as the actions don’t breach court and ethics rules.

A commonly cited example: If the prosecution is ready to go to trial, the defense will seek a continuance, hoping some of the state’s witnesses essential to the case — usually police officers — won’t show up the next time or that the court will be more inclined to dismiss charges as the speedy-trial deadline gets closer.

“There’s all kinds of game- playing,” Bakke said.

Defense attorney Rick Holcomb is among those who think the congestion problem has worsened in recent years.

He attributes that to several factors, including the lack of plea- bargaining, judges dismissing too many cases without prejudice, the misapplication of Rule 48 and some per-diem judges who are ill-equipped to preside in District Court.

“Thus, we continue to appear in cases over and over, contributing to congestion and running up the costs for litigants and the taxpayer,” Holcomb wrote in an email to the Star-Advertiser.

New rule eases logjam

As problematic as congestion is today, it actually pales compared with the logjams from the early ’90s.

Back then DUI defendants were able to demand jury trials — today they’re entitled to only bench trials — and had to wait up to three to four years to get them. Rule 48 did not apply to DUI cases at the time.

The Legislature subsequently changed the law, lowering the penalties for DUI and eliminating the right to a jury trial.

“What used to be a big problem with congestion is now a little problem,” said R. Patrick McPherson, an attorney who specializes in DUI cases.

In explaining what happened in the 2016 Burns case, prosecutors said the court minutes fail to reflect that the prosecution actually was ready to go to trial when it requested a continuance in December 2016 because of the congestion issue.

Jeen Kwak, deputy prosecutor and chief of the office’s misdemeanor and traffic division, said her office didn’t refile the charge against Burns for several reasons, including that the 2016 incident was her first alleged offense, her blood-alcohol content was barely above the legal limit of 0.08 and she was not involved in a crash.

The office has to prioritize cases, give new ones a chance and be aware of the congestion problem, Kwak added.

Even though four months have passed since Daniel Mole’s death, his parents say they’re still struggling to deal with his absence.

“Not easy,” Raynette Mole said, adding that she starts and ends her day by addressing a display of her son’s photos she set up on a living room shelf. “Every night and every morning, I always say, ‘Mama loves you.’”

Richard Mole said he copes by not dwelling on what happened, keeping busy at work and home.

“Many people ask me how I am,” he said, “and I describe it as like just living life as a blur. It’s like the body can only feel and experience so much grief and pain, then it just stops. You just cannot believe it.”

CONGESTION CONTRIBUTES TO DISMISSAL OF DUI CHARGE

A woman who allegedly struck and killed two men in Makaha in February while under the influence of an intoxicant had a DUI charge dismissed in 2016. Court congestion played a role.

2016

MARCH 23

Prosecutors charge Sierrra Burns with driving while under the influence.

APRIL 21

Burns pleads not guilty.

JUNE 17

Prosecutors and defense ready to proceed, but case is continued to Sept. 16 due to court congestion.

SEPT. 9

Court approves motion to continue case to Oct. 21.

SEPT. 20

Court approves motion to continue case to Oct. 28 due to “courtroom occupancy conflict.”

OCT. 28

State requests continuance due to “court congestion,” according to court minutes, even though the six-month trial deadline is less than three weeks away. Prosecutors say they actually were ready for trial on that day, though the minutes don’t say that. Defense objects to continuance. Court denies motion, dismisses case against Burns without prejudice.

2018

FEB. 19

Jonah Ragsdale, 21, and Daniel Mole, 23, are fatally struck by a car while repairing a tire on the eastbound shoulder of Farrington Highway in Makaha. Police say the driver left the scene without stopping to render aid.

FEB. 24

Police arrest Burns, saying drugs and/or alcohol were involved in the crash.

MARCH 5

Burns pleads not guilty to multiple charges, including first-degree negligent homicide and leaving the scene of an accident involving death or serious injury.

APRIL 30

Court grants defense request to continue case to Sept. 4.

Source: Court minutes