ASSOCIATED PRESS A proposal that would change how criminal cases are brought to trial is being opposed by the ACLU. At a news conference yesterday, attorney Lunsford Dole Phillips, center, discussed the lawsuit, filed on behalf of Eric Gene Schneider, left, and A. Joris Watland, right.

ACLU backs suit to ax
proposed amendment

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By Bruce Dunford
Associated Press

Two voters backed by the American Civil Liberties Union asked the state Circuit Court yesterday to invalidate a proposed state constitutional amendment up for voter ratification in the Nov. 5 general election.

The amendment, Question No. 3 on the ballot, would let prosecutors bypass the preliminary hearing and grand jury indictment process in charging a person with a felony.

The change allowing a "direct charge" process is backed by Honolulu City Prosecutor Peter Carlisle, who complained the ACLU's lawsuit is an attempt to rig the election against the amendment after it failed to stop the Legislature from proposing the change.

"The change will still protect an individual's rights and get the police officers out of the courthouses and into the community," Carlisle said.

Lawmakers who supported the measure said it would ease the burden on victims and witnesses of having to make court appearances and would save police and prosecutor manpower worth millions of dollars each year.

The amendment would let prosecutors submit written police reports and witness statements to a judge who would then determine if there is "probable cause" to believe the suspect committed the crime and, if so, schedule a trial.

It would be an alternative to holding a preliminary hearing in open court or a grand jury proceeding to hear oral testimony from victims and witnesses for the judge or grand jury to determine if the evidence meets the "probable cause" test.

The lawsuit, filed by A. Joris "Jory" Watland and Eric Schneider, said the information materials describing the proposed amendment to voters are false and misleading and therefore violate the state and federal constitutions.

ACLU attorney Lunsford Phillips said the information implies the Legislature approved procedures to implement the new process, but Gov. Ben Cayetano vetoed the bill that contained those procedures.

Without the accompanying legal process, it shifts the burden from the prosecutor to show a judge there is probable cause to believe a suspect committed the alleged crime to the defense to show there is not, Phillips said.

Chief Elections Officer Dwayne Yoshina and Legislative Reference Bureau Director Wendell Kimura did not include that fact in their voter information materials, he said.

"The important point is that the democratic process has been undermined, the fundamental fairness has been undermined because voters are being misled," said ACLU attorney Brent White. "You can't have a fair election when voters are being lied to by the state and the Office of Elections."

Carlisle said the proposed amendment itself says he could not use the "direct charge" process until the Legislature approves the procedures and provisions.

"Unless the Legislature passes the procedures and provisions required by the amendment, there's no way I could use it," he said.

White, however, said passing the amendment "would give the prosecutor point-blank power with no checks, no balances to charge people directly with criminal charges."

Because the allegedly inaccurate information materials describing the amendment have already been distributed, it is too late to remedy the situation other than to invalidate the ballot question, Phillips said.