Sons’ court cases
pose dilemma
for 2 judges

The state's practice raises questions
about objectivity, experts say

The state allows judges to preside over criminal cases even if immediate family members become targets of criminal investigations or prosecutions in the judges' district.

Some experts say the practice raises questions about possible conflicts of interest.

At least two cases have arisen this year in which circuit judges on Oahu presided over criminal cases while their adult sons were under investigation for allegedly committing crimes on Oahu.

Dexter Del Rosario: Son was sought for contempt of court while living in his parents' home

In one case, a judge is continuing to hear criminal cases involving the offices of the Prosecutor and Public Defender while the former pursues charges against his son and the latter represents the son.

It's a two-pronged connection that creates the appearance of a conflict of interest, something judges typically try to avoid, according to some legal experts.

Questions arise about whether judges in such situations will be biased against the office prosecuting the family member or tend to favor the office defending the family member.

"The judge on his own should go to whomever and say, 'I should be reassigned (to civil court)' or take a leave pending resolution of the family member's case," said University of Southern California law professor Michael Brennan. "That would be the cleanest and easiest solution."

But the Judiciary says a judge's ethical conduct is governed by a code and state law, and both prohibit judges from allowing personal, social, political or other relationships to influence their judicial conduct or judgment.

Judges are required to disqualify themselves from proceedings in which "their impartiality might reasonably be questioned, such as when a close family member is a party to the proceeding," the Judiciary said. "But disqualification issues are addressed case by case, not categorically."

Some legal experts say temporarily reassigning a criminal-court judge to civil cases would be difficult to do without causing considerable disruption to the court system.

Sandra Simms: Her son is accused of assaulting a man and stealing a car in Mililani

They also say such a move would be unnecessary, given that judges by law generally are presumed to be able to handle cases impartially, absent compelling evidence to the contrary.

A situation in which a judge's family member is facing criminal charges in the judge's district is so unusual that national experts say they are unsure what the most common approach would be for handling such matters.

But at least two cases already have cropped up this year on Oahu.

In one case, the 26-year-old son of Judge Dexter Del Rosario was arrested in August for allegedly stealing a car and possessing drugs and drug paraphernalia. Brett Delrosario at the time also was being sought on an outstanding criminal contempt of court warrant -- even as he was living at his parents' Aina Haina residence, according to police and county records.

The car owned by the fiancˇ of a tenant living at Judge Del Rosario's home was stolen while parked on the street in front of the residence, the tenant told police. Police said in August that a suspect was arrested after he was found driving the stolen car.

Brett Delrosario, however, was released from jail without being charged. While that investigation was pending, he was arrested again, this time in October for allegedly purchasing more than $5,500 worth of computer equipment and trying to purchase $650 worth of jewelry using fake identification cards and forged checks, according to court records.

Delrosario was charged with forgery, identity theft, attempted theft and theft. Deputy Public Defender Ed Harada is representing the judge's son. Harada declined comment on the pending cases.

Earlier this year, Delrosario had another run-in with the law. He was arrested in February, found guilty of disorderly conduct in March and fined $100, according to criminal justice records.

In the other judge-related case, Richard H. Simms, 25, was arrested in February for assaulting a passer-by and stealing the car of another man after leaving a Mililani restaurant. Simms is the son of former Judge Sandra Simms, whose term expired in May. He pled no contest earlier this month.

While their sons' cases were pending, the two judges continued to hear criminal cases as part of a group of roughly a dozen jurists assigned to the criminal-court calendar in the 1st Circuit of Oahu.

Del Rosario, through a court spokeswoman, declined comment. Simms could not be reached for comment.

Since his son's arrest, Del Rosario has recused himself from presiding over any cases involving Harada, the deputy public defender representing his son, according to the Judiciary.

A spokesman for the Prosecutor's Office would not say whether the office is comfortable with judges presiding over criminal cases while a family member faces prosecution.

University of Louisville law professor Les Abramson said reassigning a criminal-court judge while a family member's criminal matter is pending would create logistical problems, especially for the ongoing cases the judge already has.

A more practical way to handle the appearance of conflict would be to turn over the family member's case to a special prosecutor, such as someone from the attorney general's office, and have a court-appointed private attorney handle his defense if the public defender is involved, Abramson said. That makes the connection between the judge and the two offices less direct, he said.

"You're never going to eliminate the appearance of impropriety altogether, but what you would do is try to minimize it," Abramson said.

One potentially troublesome situation would be if a key witness for the prosecution, such as the police officer who arrested the family member, was scheduled to appear before that judge in another unrelated case, legal experts say.

If the case involved a nonjury trial, in which the judge gauges the credibility of witnesses, questions would arise about whether the judge could fairly assess the testimony of the officer, the experts said.

Abramson said a judge in that situation probably should recuse himself from hearing the case.

A judge who has a family member under investigation in a pending criminal matter would be required to disclose that information to both sides in other unrelated criminal cases that come before that judge, the Judiciary said in a statement.

Disclosure is required of any information "the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification," the Judiciary said.

But Brennan, the USC professor, said disclosing such information falls short of addressing the appearance of a conflict.

Moreover, motions to disqualify a judge rarely succeed, legal experts say.

"It's almost always up to the judge to decide whether he recuses himself," said Jean Rosenbluth, another USC law professor. Unless a party can show evidence of bias, "you're not going to prevail. It's a tricky thing."

The Hawaii Supreme Court in a 1998 case provided guidance on the issue of whether a judge should be disqualified because of an appearance of impropriety.

"Bad appearances alone do not require disqualification," the court noted. "Reality controls over uninformed perception."

The justices ruled that there is an existing presumption that judges will be fair and established a standard for disqualification due to "the appearance of impropriety."

The test is whether a reasonable person appraised of all the facts would think the judge's ability to do his or her job with integrity, impartiality and competence is impaired, the court ruled.