Raising Cane
By Rob Perez
Ordering a menu dish
with no legal recipeFor something as serious as amending the state constitution, we're going about this all wrong.
We've got the process backward, and we can thank legislators for that.
When voters go to the polls Nov. 5, they'll be asked to approve a constitutional amendment (No. 3) that would enable prosecutors to eventually gain a third option for pursuing felony criminal charges against suspects.
The constitution currently permits two options: prosecution via a grand jury indictment or a preliminary hearing in court. In either case, witnesses testify and are questioned under oath, and a determination is made by jurors or a judge -- depending on which method is used -- whether sufficient evidence was presented to order the suspect to trial.
To streamline the process and ease the burden on witnesses and victims, state and county law enforcement officers are seeking authority to initiate felony proceedings simply by filing affidavits and other documents detailing the alleged crime. That would eliminate the need for direct witness testimony. A judge would review the documents and determine whether there was probable cause to proceed to trial.
The amendment is supported by an array of groups, including police, prosecutors, senior citizen advocates, retailers, hotel operators, bankers and others. They claim it will save the government lots of money, treat victims and witnesses fairer, get defendants to trial faster and reduce the time police must spend in court, allowing them more time to fight crime on the streets.
That all sounds swell and dandy, but there's one major flaw: Even if the amendment passes, no one can say for sure how this new method of felony prosecution would work.
The Legislature would have to pass a bill setting up the procedures, and the governor would have to sign it into law.
Until then, there's no way of knowing whether the benefits touted by amendment supporters actually will pan out because a lot depends on how the system works.
"It's simply a crapshoot to pass this (amendment) without those questions answered," said Deputy Public Defender Susan Arnett.
Arnett is among those, including criminal defense attorneys, civil liberties advocates and law school professors, who say the proposal would undermine basic rights of people accused of crimes and place too much power in the hands of prosecutors.
"This is not democracy at its finest," said Jon Van Dyke, a law professor at the University of Hawaii.
While legislators, without a single vote of dissent, approved the bill putting the amendment question on the ballot, they weren't able to pass a companion measure that spelled out how the so-called information charging would work.
Instead, they approved a bill authorizing the formation of a task force to study what other states do in this area and what might work well in Hawaii. (At least 14 states use information charging in some form.) Gov. Ben Cayetano vetoed the bill because no money was appropriated to fund the task force.
Honolulu Prosecutor Peter Carlisle said having the proposed procedures approved before voters go to the polls would have been beneficial.
"That would have been a wonderful thing," Carlisle said. "But that's not the way the Legislature works."
Rep. Eric Hamakawa, House Judiciary chairman, downplayed the importance of having the procedures approved before the vote, noting that they could be changed in future legislative sessions because they're not written into the constitution.
What's important, he said, is that the Legislature proceed carefully and not rush into anything.
"This is a rather significant step we're taking on how we charge people," Hamakawa said. "I think we want to go slow."
If voters approve the amendment, another attempt will be made next session to establish a task force, Hamakawa said. If the amendment is rejected, "we're not going to pursue it any further."
Carlisle and other proponents have been stepping up lobbying efforts, believing this may be their only shot at getting something approved.
Critics have accused them of spreading misinformation.
Carlisle, for instance, has said the ability to use information charging would save his office about $600,000 a year and the police departments even more. He also said it would save witnesses time and money by not having to testify at grand jury or preliminary hearings.
But Michael J. Brennan, a University of Southern California law professor, said he believes the proposed change ultimately would cost taxpayers more than the current system.
By having charges initiated through a grand jury or validated at a preliminary hearing, a defense attorney can get a better idea of how strong the government's case is. In a preliminary hearing, the defense lawyer could assess the credibility of testifying witnesses.
If the prosecution's case is strong, the attorney can advise his or her client to enter a plea agreement rather than risk a trial, Brennan said.
About 90 percent of cases typically are settled before going to trial, defense lawyers say.
But in information charging, the defense would be unable to gauge witness credibility and to adequately judge the strength of the prosecution's case, not having the benefit of cross examination at a preliminary hearing or juror questioning in indictment proceedings, Brennan said. Under such a system, many more defendants would opt to go to trial instead of plead out, resulting in far greater costs and more inconvenience to witnesses, he said.
While there may be some upfront savings to the government, that would be more than offset by the steep increase in trials, an expected increase in pre-trial motions to dismiss charges and a further clogging of an already crowded court docket, critics say.
Carlisle, however, said such talk is speculative and isn't supported by what has happened in other states using information charging.
In Rhode Island, for instance, defendants got to trial quicker and the court's case backlog was reduced, he said.
And even if some of the critics' biggest fears pan out, Carlisle said he has the solution for dealing with a process gone awry. "I'd simply stop using it -- end of story," he said.
Here's a better one:
Not having enough information to make an informed decision, voters reject Amendment 3 on Nov. 5.
End of story.
Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.
