[ OUR OPINION ]

Misconduct hurts
defendants, public

THE ISSUE A national study has documented more than 2,000 cases of misconduct by city and state prosecutors since 1970.

MISCONDUCT by state and local prosecutors has resulted in more than 2,000 dismissals of charges, reversed convictions or reduced sentences since 1970, according to a national study. Seventeen cases of prosecutors' misconduct cited in the study led to reversal of convictions in Hawaii. Prosecutors in Hawaii and across the country need to be reminded that their role is to seek justice, not to obtain convictions by whatever means.

Judges and chief prosecutors have no easy task in trying to put reins on overzealous trial prosecutors for cities or states. In October 1999, city Prosecutor Peter Carlisle acknowledged that a deputy prosecutor, Victor Bakke, was wrong in a sexual-assault trial when he asked jurors to imagine "some black military guy on top of your daughter." The jury convicted Jerome Rogan, a former Fort Shafter soldier who is black, but the state Supreme Court overturned the conviction because of Bakke's "appeal to racial prejudice." The court ruled that Rogan could not be retried because of double-jeopardy rules.

"I have since spoken to both the deputy involved and all other deputies and informed them that unless you have to mention race, don't," Carlisle said after the reversal.

Sure enough, only five months later, Deputy Prosecutor Chris Van Marter, in the trial of six black men, urged jurors to picture "a young local woman born and raised here in Hawaii" being surrounded in a hotel room by "six African-American males," two of whom sexually assaulted her while the others watched. The convictions of the two assailants -- Habib Shabazz and Mario Crawley -- were negated on appeal because of the prosecutor's misconduct. The Intermediate Court of Appeals ordered a new trial, and they were convicted again six months ago in a jury-waived trial.

The national study, conducted by the Center for Public Integrity, found 223 prosecutors who had been cited by appeals courts for violations ranging from making inflammatory comments to tampering with evidence. It found 28 cases involving 32 defendants in which judges found that the misconduct led to convictions of innocent people. The 32, some of whom had been convicted of murder, rape or kidnapping and had been sent to death rows, were later exonerated, 12 of them by use of DNA evidence.

While incomplete -- the Shabazz-Crawley case is not cited -- the study points out that many of the defendants were convicted in retrials.

However, other instances of misconduct were so egregious that appellate courts put the defendants back on the street because of double-jeopardy, even though they might have been guilty.

Carlisle must repeatedly remind his troops of the Hawaii Supreme Court's admonition in one of the study's cited cases about a prosecutor's obligation: "He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones."

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Counties can tailor
their smoking bans

THE ISSUE A proposed ban on smoking in restaurants has been given preliminary approval by the Hawaii County Council.

THE Hawaii County Council appears to be on the verge of completing what will be a statewide ban on smoking in restaurants. The ban dictates the way restaurant owners may operate their businesses, and its extension throughout the state is likely to impair their ability to determine the effects of the ban. The Hawaii restaurants nevertheless should try to measure any revenue losses or gains associated with the ban so county councils may reconsider their actions in years ahead.

Smoking has been prohibited in restaurants on Oahu for a full year, and similar bans went into effect on Kauai and in Maui County on Jan. 1.

The Hawaii County Council has considered including bars in the ban but gave preliminary approval this week to limiting it to restaurants. In Honolulu, smoking is allowed in bars where food sales account for less than one-third of alcoholic beverage sales.

Some restaurant owners have praised the ban, saying it improved business, which raises the question of why they hadn't banned smoking in their establishments on their own. Michelle Van Hessen, president of the 8,000-members Hawaii Restaurant Association, is certain that the ban will harm restaurants. "They're trying to regulate these people out of business," she said of the action taken on the Big Island.

Determining the financial effect on restaurants would have been easier if smoking policies had been left to restaurant owners in parts of Hawaii. The statewide ban instead will allow proponents of the smoking ban to ascribe financial effects of the ban on the ups and downs in tourism or other factors. Hessen's organization nevertheless should conduct such a study to be cited in future reviews of the policies.