Commutation The deputy attorney general who won a conviction against a care home operator for neglecting one of her patients says he is "disappointed" that former Gov. Ben Cayetano reduced her sentence.
draws criticism
A prosecutor says he
is "disappointed" with
Cayetano's decisionBy Debra Barayuga
dbarayuga@starbulletin.comIn one of his last acts before leaving office Monday, Cayetano commuted the sentence of Raquel Bermisa, a Pearl City care home operator who later lost her license, to four years. This was the first and only commutation Cayetano has granted in eight years as governor.
Bermisa was serving a mandatory minimum of six years and eight months after she was convicted in October 2000 of manslaughter by omission for failure to seek proper medical care for 79-year-old Chiyeko Tanouye, who died in August 1999.
Deputy Attorney General Michael Parrish said he opposed the reduction and was given only an hour to fire off a brief memo Monday to Cayetano stating his objections.
"She never unconditionally apologized for her behavior, and furthermore, the statutory provision under which she was sentenced is designed to protect our elder population and punish people who take advantage of elders and cause them harm," Parrish said.
He has since received several calls from others who are upset with Cayetano's decision.
Bermisa initially faced only a year in jail under a plea agreement reached with the state. But she later withdrew her plea, went to trial and was convicted.
The court sentenced her to a maximum of 20 years with a mandatory minimum of six years and eight months -- not to punish her for going to trial, Parrish said, but as a consequence for her failure to admit she had done wrong and because the law requires mandatory prison time for offenses against the elderly.
Attorney William Harrison, who represented Bermisa at trial and assisted her last year in her application for a pardon, said he is elated she at least got a commutation.
"We would have preferred the governor pardon her because we don't believe she committed an offense in this case," he said.
Cayetano said yesterday he believed the sentence she received was too harsh and her actions amounted to negligence, unlike the actions of police officer Clyde Arakawa, who was sentenced to 20 years for causing another's death while driving recklessly while intoxicated.
If Cayetano felt Bermisa was guilty of neglect, he should have pardoned her because negligence does not rise to the criminal act of manslaughter, Harrison said.
He said the mandatory sentencing provision for crimes against children, handicapped and the elderly should not have applied in this case because that law is in place to penalize individuals who commit intentional acts, not crimes of omission.
He took issue with statements Cayetano made publicly that Bermisa was given bad advice by her attorney.
Bermisa had approached him to withdraw her guilty plea to manslaughter and proceed to trial because she did not believe she had done anything wrong, Harrison said.
It was the first time a case has gone to trial involving a caregiver who through omission was charged with manslaughter -- recklessly causing someone's death -- and she did not believe she committed a reckless act, he said.
The Bermisa case points to health and safety issues in care facilities, said Greg Marchildon, AARP Hawaii executive director.
He said Tanouye's death while under Bermisa's care was "completely preventable. She died with bedsores the size of plums all over her body because Miss Bermisa was neglecting her care.
"As far as whether it was appropriate or inappropriate for the former governor as one of his last acts to pardon Miss Bermisa, that is a discussion for legal scholars to have," Marchildon said.
Tommy Johnson, Hawaii Paroling Authority administrator, said that while the governor usually requests that they investigate defendants seeking pardons or commutations, they were not asked to look into Bermisa's case. Had they been asked, the board would have considered the fact that a person had died, he said.
Star-Bulletin reporter Helen Altonn
contributed to this report.