Saturday, October 3, 1998

Hawaii's judicial system is an elaborate
and oftentimes incomprehensible procedural
maze that erects barrier upon barrier
to determining the truth.

By Peter Carlisle and Mark Bennett
Special to the Star-Bulletin

A recent Gallup poll surveyed public confidence in certain American institutions. More than half the people polled indicated they had "a great deal" or "quite a lot" of confidence in the military, the police and organized religion. Only 22 percent had much confidence in Congress, and at the bottom of the list with 19 percent was the American criminal justice system.

Lawyers often say that the reason people have so little confidence in the criminal justice system is because they do not understand it. The public's dissatisfaction with the criminal justice system is not a product of ignorance, but is the result of a legitimate belief that the criminal trial and appellate process too often produces results that are unfair or unjust.

The Hawaii Supreme Court's approach to criminal law has done little to promote confidence in the administration of justice in Hawaii. The court seems at times to go out of its way to reverse serious criminal convictions in circumstances in which such reversals are not required by any rule of law or by any rational concept of justice.

Following are a few recent cases which are representative of the Hawaii Supreme Court's approach to criminal law, and representative of the negative impact this approach has on justice in Hawaii.

Raines vs. State

Todd Raines and his girlfriend lived in an apartment in the home of their landlord, Ray Wassinger. On Sept. 1, 1984, Raines killed Wassinger by chopping his neck, head and face with a machete. Raines dumped Wassinger's body in a drainage canal, stole money from Was-singer's bank account, purchased an airline ticket under an assumed name, and fled to Seattle. He and his girlfriend were arrested in Seattle, and his girlfriend testified against him at his 1985 trial. Raines and his girlfriend testified that Wassinger had peeped into their apartment on several occasions.

Raines testified that on the day of the murder he saw someone at his bedroom window who turned out to be Wassinger and that he confronted Wassinger. After Wassinger allegedly came at him with raised hands, Raines, armed with a machete, struck Was- singer's head and neck, killing him.

At the trial, one of Raines' defenses was that he killed Was-singer acting under the influence of extreme emotional distress and thus was guilty only of man-slaughter. Although the court gave the jurors instructions on reasonable doubt, it did not specifically tell them that the prosecution had the burden of proving beyond a reasonable doubt the absence of extreme emotional distress. No such instruction was requested, and no objection was made to the instructions that were given by the defense attorney.

In a 1978 case, the Hawaii Supreme Court had ruled that trial courts need not give a specific burden of proof instruction as to a defense. So in the Raines case, the trial court, defense and prosecutor followed the law that existed at the time of the trial.

Raines was convicted of murder, sentenced to life imprisonment and then appealed. In March 1986, Raines withdrew his appeal. Five years later, in July 1991, Raines changed his mind and found a way to get his case before the Hawaii Supreme Court.

The Supreme Court overruled the 1978 case "on second look," and changed the law. The court found that the rights of Raines may have been affected, reversed the conviction and remanded the case for a new trial, with the Supreme Court's decision coming some 11 years after the murder. There was no consideration given to applying the new law only to new cases, and there was no consideration given either to the adverse impact on the victim's family, or the administration of justice, caused by requiring a retrial of a murder that took place in 1985.

And there was no discussion on the strength of the government's case except that the court noted that the jury could have believed Raines' testimony that he acted in a "rage" constituting extreme emotional distress for which there was a "reasonable" explanation.

After much time and expense, Raines was again convicted of murder on Dec. 15, 1997 and sentenced to life with the possibility of parole on March 6, 1998. Raines is currently appealing this conviction.

State vs. Maelega

Muao Maelega beat his wife Eyvette repeatedly, telling a hospital nurse on one occasion that he did so because "it's OK for (husbands) to beat up their wives and their children for obedience." In 1991, Maelega suspected Eyvette of having had sex with her stepfather. As Eyvette's mother was on the phone to their "talking chief," she saw Maelega drag Eyvette into their bedroom, and lock and barricade the door.

Maelega choked his wife with his hands, strangled her with an electric cord that was wrapped around her neck three times, slashed open her throat, and stabbed her in the back and breasts.

At his trial, Maelega argued that he killed his wife under extreme emotional distress for which there was a reasonable explanation (his suspicion of extramarital sex), and thus was at most guilty of manslaughter.

The court instructed the jury that to convict the defendant of murder the "prosecution must prove beyond a reasonable doubt that the defendant was not at the time he caused the death (of his wife) under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation."

The court also instructed the jury that on this issue the defendant had the initial burden to provide some credible evidence of facts constituting the defense, unless those facts were supplied by the prosecution's witnesses. "If this occurs," the jury was told a second time, "the prosecution must then prove beyond a reasonable doubt that the defendant was not at the time of the offense under the influence of extreme mental or emotion(al) disturbance for which there is a reasonable explanation." The defendant was convicted of second-degree murder.

The Supreme Court ruled that the trial judge committed reversible error in instructing the jury, because the instructions could (somehow) have been interpreted to shift the burden of proving extreme mental or emotional disturbance to the defendant.

The court made that determination despite the fact that the jury was twice specifically instructed that the government had the burden of proof beyond a reasonable doubt. Moreover, in closing arguments both the prosecution and defense repeatedly told the jury that the prosecution had the burden of proof beyond a reasonable doubt on this issue.

Justice Paula Nakayama disagreed with this decision and wrote that the majority of the Supreme Court had stretched the possible interpretations of the jury instruction by guessing at what the jury could have implied, relying on the possibility that the jury was not intelligent enough to understand what they had been repeatedly told.

She concluded that in this case "where the old way of thinking of women as chattel met head-on with the present-day acknowledgment of women as having the right to personal autonomy, there was no error committed by the trial judge and the conviction should stand."

On June 4, 1998, Maelega was convicted a second time of murder in the second degree, is currently awaiting sentencing, and will undoubtedly appeal again.

State vs. Apilando

During a gathering in August 1990, William Apilando Sr., while playing hide-and-seek with a 5-year-old girl, allegedly pushed her to the ground and sexually assaulted her. The victim managed to escape and immediately reported the crime.

Two days after the incident, a police detective videotaped an interview with the child in which she described what had happened. Apilando was tried for sexual assault and kidnapping, and the prosecution moved to introduce the videotape after the victim testified. The videotape was excluded on the grounds that it would be cumulative and prejudicial.

Without the videotape, the jury could not reach a verdict on the sexual assault and acquitted the defendant of kidnapping. Before the retrial, the government announced its intention to introduce the tape into evidence, with the victim available for cross-examination.

At the second trial, the tape was played for the jury in place of the victim's direct examination, the victim was cross-examined by the defendant during the prosecution's case, and the prosecution conducted a "redirect" examination. Apilando was convicted of sexual assault.

The Supreme Court, in a 3-to-2 decision, found that the introduction of the videotape violated Apilando's constitutional right to confront witnesses under Hawaii's Constitution, and vacated the conviction. There are many federal and state cases that hold that the confrontation clause is not violated by the introduction of out-of-court statements, as long as the person who was videotaped is present, testified and is subject to cross examination.

In this case the child victim was present, testified and was cross-examined. The majority of the Supreme Court apparently felt that admission of the videotape was especially egregious because "the complainant (on videotape) was an extremely sympathetic witness -- a cute, adorable 5-year-old who explicitly demonstrated, by using a male and female doll, how she was allegedly abused by the defendant."

The Supreme Court's decision mandated that a third trial be held. However, on Nov. 7, 1995, the state dismissed the case as it was "in the best interests of the child" to avoid putting her through the trauma of yet another trial.

A better approach

There are many other cases that could be cited if space permitted. In the constitutional arena, the Supreme Court has expanded Hawaii's search-and-seizure law to mandate the exclusion of evidence in a great many circumstances in which the U.S. Constitution would have allowed the evidence to be admitted in court.

The Supreme Court has essentially ruled that a police officer who suspects criminal activity is not free to question a suspect after showing his badge and announcing who he is, even if he tells the suspect that he is free to leave and not under arrest, because a police officer's approaching a person for the purpose of investigating him and then asking him for information is a "seizure" in the constitutional sense.

The Supreme Court has reversed countless convictions for "plain error," and put into effect a system in which defendants and their lawyers may be better off not asking for jury instructions to which they are entitled, or not objecting to erroneous jury instructions, because by doing so they gain a "free" new trial if convicted.

A basic function of the criminal justice system should be the search for the truth. Certainly the courts, law schools and attorneys all pay lip service to this function. In reality, the law is often not a search for the truth. Our system is an elaborate and oftentimes incomprehensible procedural maze that erects barrier upon barrier to determining the truth.

Perhaps the most unfortunate aspect of the Supreme Court's approach to criminal cases is that the court seems to have forgotten about how its decisions' affect victims of crime and society at large.

In considering whether to establish new rules of law that expand the rights of defendants, mandate the suppression of relevant evidence, or expand the doctrine of plain error, the price to victims of crime and to society as a whole should clearly be considered. Individual and civil rights are extremely important, and the constitutional rights of all defendants -- guilty or innocent -- must be protected.

But that does not mean that our appellate judges should aspire to create a court system in which the balance tips in favor of criminal defendants more than in any other jurisdiction.

Nor should their goal be to reverse convictions, and either free the guilty or subject victims and witnesses to multiple trials, when such reversals are not mandated by the U.S. Constitution, the language of Hawaii's Constitution, common sense, or sound public policy.

What is to be done?

Arthur Vanderbilt, former chief justice of the New Jersey Supreme Court, indicated that the highest calling for every lawyer within the profession is to work, on a day-to-day basis, to improve the quality of the courts and the system of justice.

So lawyers should be willing to criticize the Supreme Court for its criminal law decisions and to do so vociferously, vigorously and publicly.

The Hawaii Supreme Court's approach to criminal law needs to be challenged and ultimately changed. One way to bring about part of this change, is to advocate an amendment to Hawaii's Constitution that would stop the suppression of evidence in cases in which such suppression is not mandated by the U.S. Constitution.

Other states have taken that step, and such an amendment would significantly improve the quality of criminal justice in Hawaii.

The basic purpose of the criminal justice system should be to punish the guilty and free the innocent. Justice is not furthered, however, when common sense is abandoned and the rights of defendants are elevated to such a degree that the rights of victims of crime and society as a whole are forgotten.

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About the authors:
Peter Carlisle is the prosecuting attorney for the
City and County of Honolulu.
Mark Bennett, a former assistant United States attorney,
is a partner in a Honolulu law firm.