View Point

Friday, March 5, 1999

Convoluted law led to
travesty in Pada trial

By Peter Carlisle


THE law believes certain extreme circumstances can provoke a perfectly normal person to commit murder. The development of this law began centuries ago in England. It was felt, in old England, that a husband finding his wife in the act of sexual intercourse with another man would be under such extreme duress that the husband could be provoked to kill.

The law differentiated between a cold-blooded murder and a murder committed in the heat of passion.

While the law could not excuse the latter, it could mitigate the charge from murder to manslaughter.

After all, this was a reasonable person in an unreasonable situation through no fault of his own.

This is why, in Hawaii and many other states today, it is a defense -- one that can reduce the charge of murder to manslaughter -- if the defendant was, at the time of the killing, under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation.

This defense was raised in the just-completed trial of Kimberly Pada. On Aug. 30, 1997, Pada beat and shook her 4-year-old son, Reubyne Buentipo Jr., to the point of non-responsiveness. The next day, Pada got high on "ice" and attacked the child again.

When her pastor forced her to take her son to the hospital, Reubyne was in a coma, had suffered from cigarette burns and had injuries over his entire body including his rectum and penis. The flesh on his left foot was melted away by scalding liquid.

Witnesses testified that Pada had previously abused the child and had even shoved his face into his own excrement when he soiled his pants.

Was Pada a reasonable person in an unreasonable situation through no fault of her own, which would thus reduce her crime from attempted murder to attempted manslaughter? Of course not. Which is why the jury returned a guilty verdict for attempted murder in the second degree.

But why is Pada going to be sentenced as if the verdict in her case had been attempted manslaughter?

It's because the law in Hawaii regarding extreme mental or emotional disturbance is convoluted. Under current state law, the prosecution must prove that a defendant was not under the influence of extreme mental or emotional disturbance when committing a crime.

It is hard to prove what is going on inside a defendant's head. For example, consider if a husband is discovered standing over the bodies of his dead wife and another man. Clearly, two people have been shot, and the husband has a smoking gun in his hand.

But the prosecution must prove that the husband was not emotionally disturbed because he caught his wife and the other man in the act of sexual intercourse. The prosecution must prove this beyond a reasonable doubt.

It would make more sense to require the defendant to prove that he was acting under extreme emotional disturbance, because he saw his wife and the other man in the act of sexual intercourse. This is called an affirmative defense, which means that the defendant, not the prosecution, has the burden of proof.

Insanity is an example of an affirmative defense. In the example of the man who killed his wife and the other man, the defense would have to prove that it was more likely than not that the husband was under extreme mental or emotional disturbance, because he caught his wife cheating on him.

Since 1992, prosecutors have been trying to get the state Legislature to change the law along these lines. Legislators were warned that a travesty such as the Pada case could occur.

Instead of listening to prosecutors, however, the Legislature listened to the Office of the Public Defender, which is required at taxpayer expense to defend the Kimberly Padas of the world. The Legislature did not change the law.

This year, a bill to change the mental or emotional disturbance defense as well as other flaws in Hawaii's murder statutes has been submitted to the Legislature by the Law Enforcement Coalition, comprised of the prosecuting attorneys and chiefs of police of all counties, the attorney general and the U.S. attorney. We all agree these laws must be changed.

Since the Pada decision, there is renewed interest in this bill at the Legislature. If change finally comes, it comes too late for justice for a 4-year-old boy, who is still in a coma.

One final point: The way that the law was explained to the jury in the Pada case was wrong. At the conclusion of every trial, the court decides what law applies to the case. It explains the law to the jury via jury instructions.

Because they are so important, a standing committee of experienced, capable people makes decisions on these pattern jury instructions, which have been approved for publication and distribution by order of the Hawaii Supreme Court.

Unfortunately, this order did not approve the validity or correctness of the instructions. Thus, while it would make good sense for judges to follow the pattern instructions, they aren't required to.

In the Pada case, the judge did not follow the pattern jury instructions. As a result, there was not a unanimous verdict, and the jurors did not know that their finding of attempted murder must then be reduced to attempted manslaughter. Therefore, in the Pada case, an already bad law was made worse by the way it was explained to the jury.

There are easy fixes to this problem:

bullet The Legislature should change the law by making mental or emotional disturbance an affirmative defense. One would also hope that, in the future, legislators will learn what paying too much attention to the Public Defender's Office has done to the criminal justice system in Hawaii.

bullet The Hawaii Supreme Court should approve pattern jury instructions and make sure they are as simple and understandable as possible. Since the high court has jurisdiction over all courts in Hawaii, it has the responsibility to supervise the trial courts. It should do so.

Peter Carlisle is prosecuting attorney of the
City and County of Honolulu.

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