Editorials
Friday, September 25, 1998

Letting Hawaii jurors
question witnesses

TEN years ago, District Judges James Dannenberg and Michael Town, while presiding over trials in Circuit Court, departed from tradition and decided to allow jurors to submit written questions to be asked of witnesses by the judge. What they regarded as a pilot project continued for three years until it was disallowed by the state Supreme Court. Seven years later, a judicial committee has included the practice among innovations to be tested in the courts.

Dannenberg, a native of Wisconsin, got the idea from an article in that state's bar journal and circulated it to other Hawaii trial judges. Town joined him in allowing the practice. However, in a 1991 decision in a burglary case, the Supreme Court expressed concern that questioning of witnesses by jurors may create an "inherent danger that will cause jurors to lose focus of their function as objective triers of fact and to become over-involved in the advocacy of parties."

Some attorneys oppose the practice for similar reasons and feel it intrudes on their trial responsibilities. However, 22 states now allow jurors to question witnesses, which seems sensible. Jon Van Dyke, a law professor at the University of Hawaii, says studies have shown that judges have taken measures to prevent such practices from prejudicing trials.

Town, now permanently on the Circuit Court bench, is among six judges assigned to test juror questioning and other innovations suggested by the Hawaii Committee on Jury Innovations for the 21st Century, comprised of 20 judges, lawyers and former jurors. The six are to report their findings to the Supreme Court in mid-January.

Other innovations to be tested are allowing judges to permit note-taking and pre-deliberation discussion of the case among jurors and to permit lawyers to make statements about the case to the entire jury panel prior to jury selection. They seem to be modest and acceptable alterations of what may be the overly rigid procedure juries have been obligated to follow.

Bankruptcy reform

IF the members of Congress can take their minds off the Clinton impeachment issue for a while, they should be able to reach a compromise between the House and Senate on the overhaul of the bankruptcy laws. But with only a few weeks remaining in the session, they may run out of time.

The Senate passed its version Wednesday; the House passed a tougher version in June. The differences seem bridgeable. The Clinton administration supports the Senate bill.

There is broad agreement that a tightening of the bankruptcy requirements is in order. The number of people filing personal bankruptcies last year jumped to almost 1.4 million, an increase of more than 300 percent since 1980, despite the booming economy.

Credit card companies complain that too many people take shelter under the more lenient Chapter 7, which erases debts, when they could afford to restructure their debts under Chapter 13. The companies brought some of their problems on themselves -- unpaid credit card debt is estimated at $40 billion -- by soliciting customers so aggressively that many people are swamped with offers. But it shouldn't be easy for people to avoid paying their debts.

Under the tougher House version, people who earn at least the median U.S. income, about $51,000 for a family of four, would be required to file for financial reorganization under Chapter 13, subject to a court-ordered repayment plan, if they can pay back 20 percent of their debt within five years.

Under the Senate bill, the bankruptcy judge would have to consider a debtor's ability to repay. A Chapter 13 reorganization generally would be required if the debtor could pay back 30 percent or more within three years. The Senate bill also contains provisions to protect consumers.

Both versions would give top priority to child support and alimony payments in bankruptcy cases, putting them ahead of federal income taxes, attorneys' fees and other obligations.

There is something wrong when bankruptcy cases rise sharply in a strong economy (Hawaii is an unfortunate exception). Some tightening of the laws is in order.

Accused of adultery

THE president is commander-in-chief of the armed forces. Should he be permitted to go unpunished for conduct that is forbidden in the armed forces?

The conduct in question is adultery, which President Clinton has admitted, with the additional difficulties that it was committed in the president's office with a White House intern. In the military, punishment for adultery may include a year's confinement, forfeiture of all pay and dismissal.

The question has been given added relevance by the Pentagon's announcement that allegations of misconduct by retired Maj. Gen. David Hale, former deputy inspector general of the Army, have been placed in the hands of the commander of all troops based in the United States, Gen. Thomas Schwartz.

The allegations against Hale, besides adultery, include making false statements, conduct unbecoming an officer, misconduct toward subordinates and their spouses and dereliction of duty. The misconduct allegedly occurred while Hale was serving as deputy commander for NATO ground forces in Southeastern Europe and subsequently while he was deputy inspector general.

The inspector general's report said Hale "strongly denied all the allegations of inappropriate conduct" while acknowledging a "relationship that he maintained with the former spouse of a subordinate Army officer who served with him in Hawaii."

The options available to General Schwartz include calling for an investigation that could lead to a court martial.

To some extent the allegations against Hale resemble those against the president, who is the subject of a congressional inquiry that could lead to impeachment. It is extraordinary that both investigations are proceeding at the same time. And it will be difficult to avoid comparing the treatment received by the accused general and the accused president.

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