Defendant says
racist remark hurt
chance of fair trial

A prosecutor saying 'black' and
'military' was a 'call to racism,'
the defense lawyer says

By Linda Hosek
and Susan Kreifels
Star-Bulletin

An African-American man who was sentenced yesterday to five years probation for sexually assaulting a minor says a prosecutor's remark before jurors was racist and jeopardized his chance for a fair trial.

Defendant Jerome Rogan will appeal his conviction to the state Supreme Court, alleging that a comment by Deputy Prosecutor Victor Bakke was a "call to racism," said Deputy Public Defender Ronette Kawakami.

Rogan, a soldier with the Army's Central Identification Laboratory at the time of the 1995 incident with a 12-year-old, also filed a misconduct complaint against Bakke with the Office of Disciplinary Counsel, said Kawakami, Rogan's trial attorney.

The jury's forewoman and the Afro American Lawyers Association of Hawaii joined with Rogan to condemn the remark and said they were shocked that a public employee would use inappropriate racial arguments.

Bakke, who routinely prosecutes alleged sex offenders, said he wasn't using race to inflame jurors when he said: "This is every mother's nightmare. Leave your daughter for an hour and a half, and you walk back in and here's some black military guy on top of your daughter."

Bakke said his comments were legally proper, but apologized out of court for any appearance of impropriety.

He also apologized to Rogan outside of the jury.

He said the comment "just came right out of my mouth. It wasn't said with any malice of forethought."

Bakke also said his comments, delivered at the end of his closing argument, reflected the facts of the case: that Rogan was black and in the military.

"My reason for saying it? That's what this mother saw," he said.

In a written statement, Rogan said he was embarrassed for the state, deeply offended by the comment and felt sorry for those who resort to racial overtones within the legal system.

"I will wear his words like a tattoo on my forehead for the rest of my life," he added. "I can only wonder how many others were infected with the disease of racism by his comments that day."

Kawakami objected to Bakke's remarks after he made them in closing arguments and later asked for a mistrial, saying he appealed to racism.

Circuit Judge Dexter Del Rosario overruled the objection and denied Kawakami's mistrial motion.

In sentencing Rogan to probation, the judge turned down a request by the state for a five-year jail term.

The jury found Rogan not guilty of one count of first-degree sexual assault and dropped two other counts of third-degree assault. It found him guilty of two counts of third-degree sexual assault and were hung on three others.

In the 1995 incident, Rogan was 22 and the victim was 12. She told him that she was 17 when she invited him unseen by phone to her house with her parents away, according to Kawakami.

Jurors in May found that no penetration occurred.

"The jury did not find the complainant entirely credible," Del Rosario said yesterday. "The complainant herself played a significant part . . . she invited the defendant to her home in a calculated manner at a time her parents weren't home xxx She lied to Rogan and her mother."

"If the mother had not unexpectedly come home, I wonder if there would be a trial?"

Del Rosario said Rogan -- who will be discharged from the Army because of his conviction -- had an outstanding military record, neither caused nor threatened harm and had no criminal history.

Bakke said a trial date is set in October for the three hung-jury counts, but the state will try to reach a plea agreement instead.

Regarding the alleged racist remark, Bakke said he may have viewed his comments differently if Del Rosario had objected to them.

He also said jurors didn't convey any disapproval to him, nor was he aware of any complaints made to the city prosecutor's office.

But Meg Takahama, the jury's forewoman, said most jurors were offended by the remark.

Takahama, a teacher, said that she mentioned to Del Rosario that she hoped the Judiciary would sanction the prosecutor. And she added:

"When you represent the state, you're held to a higher standard.

"What he said was so out of line."

She said she also told Rogan the comment was inappropriate.

Takahama, who described herself as a "haole" born and raised in Hawaii, said Bakke didn't have to use "black" or "military" to make his point about the sexual assault of a child being "every mother's nightmare."

"You don't need to senselessly and unprofessionally fan the flame of racism," she said.

Bakke said he responded to a racist tone set by Kawakami, who referred in her closing to the Asian concept of saving face.

He said that the victim's mother was Asian and that Kawakami implied that Asians lie to save face.

"If she had never made the argument, I never would have gone near the issue," Bakke said.

And Bakke added that neither crossed the line of misconduct.

Kawakami said she used a concept she considered mainstream to argue that the victim's parents wanted their daughter to testify against her will to try to convict Rogan.

She said in court that they wanted to regain their good reputation "even if it means lying about whether there was penetration."

Takahama said she didn't see Kawakami's argument as racist and said about the case:

"It was clear this was a mother's revenge."

Rustam A. Barbee, president of the Afro American Lawyers Association of Hawaii, said he was compelled to respond more by sadness than anger.

In a letter to city Prosecutor Peter Carlisle, he said racist comments by a public employee and officer of the court "are as offensive today in Hawaii in the 1990s as they were decades ago when used to promote unjustified lynchings of black men in the Southern states."

Carlisle said he reviewed Bakke's remarks and said he didn't believe Bakke intended to use race to inflame the jury.

He said he spoke with prosecutors after the incident to review a general rule: "Unless you have to mention race, don't." The Rogan case didn't have anything to do with race, he said.

Carlisle also said Del Rosario's rulings and the jury's verdict suggested that they didn't think Bakke intended to use race to inflame the jury.