Judge fails to disclose
legal woes of son

In multiple criminal cases that came before him, an Oahu judge did not formally disclose that he had an immediate family member facing criminal prosecution here, a situation that some legal experts say creates an ethics problem for the court.

The Star-Bulletin began pursuing the disclosure issue after it published a story in late November about the unusual circumstances of two Honolulu judges presiding over criminal cases while their adult sons faced prosecution on Oahu.

At the time, the state Judiciary indicated that a judge in such a situation would be required to disclose that information on the record in other criminal cases before the judge.

The idea is to give parties in those cases information to decide whether the judge's family connection to a pending criminal matter would prompt them to question the judge's ability to impartially hear their cases.

After publication of the initial story, members of the offices of the prosecutor and public defender, responding to a Star-Bulletin inquiry, said that Judge Dexter Del Rosario in some criminal cases had not disclosed that his adult son was facing criminal prosecution in an unrelated case. They also said they couldn't recall cases in which he disclosed the information.

When the newspaper subsequently asked the Judiciary about that nondisclosure, a spokeswoman said the duty to disclose is up to the judge.

"Clearly, if the judge does not believe that the information in question is something the parties or their lawyers might consider relevant to the question of disqualification, then disclosure is not required," Judiciary spokeswoman Marsha Kitagawa wrote.

Critics blasted that logic.

Even if failing to disclose doesn't violate rules governing judicial conduct, they said, it creates a poor public perception of judges able to avoid disclosing embarrassing information that parties in a criminal case might consider pertinent.

Defense attorney Earle Partington called the Judiciary's position "a load of garbage. I don't think anyone doubts Judge Del Rosario's fairness. This is about the Judiciary saying that no matter how unreasonable a judge's belief is, it's OK as long as the judge really believes it."

Del Rosario and Judge Sandra Simms, who left the bench in May, presided over Oahu criminal cases last year while their adult sons faced prosecution on Oahu. Del Rosario still is in that situation.

Though such cases are rare, they give rise to an appearance of a conflict of interest. Legal experts say questions can be raised about whether a judge would be biased against the office prosecuting the family member or, taking the opposite approach, show bias for that office to curry favorable treatment of the family member.

The Prosecutor's Office on Oahu handles numerous criminal cases and appears before Del Rosario on a regular basis.

The potential for conflict has been magnified because not only is the Prosecutor's Office pursuing multiple charges against Del Rosario's son but the Public Defender's Office represents the son.

The latter office likewise regularly handles numerous cases before criminal-court judges, including Del Rosario.

Del Rosario, through the Judiciary spokeswoman, declined comment, citing rules that prohibit judges from speaking publicly about matters related to pending court cases.

Legal experts have told the Star-Bulletin that disclosure alone falls well short of addressing the problem of an appearance of a conflict.

"I don't see that as much of a remedy," said University of Southern California law professor Michael Brennan.

Brennan said the best way to deal with such a problem is to reassign the affected judge to civil cases while the family member's criminal case is pending. That way, he said, the link between the judge and the prosecutor's office is eliminated, along with an appearance of a conflict.

Judges are required to avoid even the appearance of impropriety.

Del Rosario was told by the Commission on Judicial Conduct that his situation does not require his disqualification from criminal cases, said Gerald Sekiya, commission chairman.

Since the arrest of Del Rosario's son, the judge has recused himself from any cases involving Ed Harada, the deputy public defender representing his son.

And since the initial Star-Bulletin story was published, none of the parties who have cases pending before Del Rosario "have communicated any objection to his continuing to preside," Kitagawa wrote Dec. 20, "which suggests an absence of concern in those most directly involved."

A spokesman for the Prosecutor's Office declined comment.

Public Defender Jack Tonaki said he's not sure he would agree that a judge should be required in all criminal cases to disclose that the judge has a family member facing prosecution in the same jurisdiction.

"I just think that judges will make whatever disclosures are necessary in each case," Tonaki said.

The law generally presumes that judges can be impartial absent compelling evidence to the contrary.

Representatives from the Prosecutor's and Public Defender's offices said they were unsure whether Judge Simms disclosed her son's pending criminal matter in the cases she presided over between her son's February arrest -- he eventually pled no contest to assault and car theft -- and Simms' departure from the bench in May.

Simms could not be reached for comment.

Del Rosario's most recent appointment to the criminal bench began in June, more than a month before his son's August arrest for allegedly stealing a car. In October, the son, Brett Del Rosario, was arrested in an unrelated case and charged with multiple counts, including forgery and theft. He pled guilty last month in both cases and is awaiting sentencing in March.

While no lawyer contacted by the Star-Bulletin suggested that Judge Del Rosario, who has a reputation for being fair and even-handed, would be unduly influenced by his son's case, some said his lack of disclosure compounds a perception problem.

Brennan, the USC professor, agreed. "There is an appearance of impropriety when a judge fails to disclose that type of information," he said.