‘Murder by
omission’ possible
in Peter Boy case
An option available to Big Island prosecutors in the Peter Kema Jr. case is to bring a charge of "murder by omission" -- to prove that a death resulted by not seeking medical attention or not providing basic needs for the child, criminal attorneys said.
However, they added that making the charge stick may be difficult without a body.
Big Island Deputy Prosecutor Mike Kagami, who is assigned to the "Peter Boy" case, confirmed that murder by omission is being considered.
"We'd look at any possible charge, whether it would be commission or omission," he said.
Criminal defense attorney Todd Eddins said Honolulu prosecutors often charge both murder and murder by omission in child deaths.
Eddins defended Christopher Aki, who was convicted of manslaughter by omission in the death of 12-year-old Kahealani Indreginal, whose body was found on an Aiea trail in December 2002. Aki was accused of murder, but convicted of the lesser charge of manslaughter for not providing aid to Indreginal.
Eddins said he believes the prosecution has "a strong circumstantial case" if they bring charges against Peter Boy's parents.
But, he added, "it's not a bad case for the defense either."
Peter Boy is believed to have disappeared in 1997. His parents, Peter Sr. and Jaylin Kema, said he was given to "Aunty Rose Makuakane" in Aala Park on Oahu. They reported him missing in 1998.
But police believe Makua-kane does not exist and investigated the Peter Boy case as a homicide.
The Kemas have denied killing their son and have never been arrested or charged in connection with the case.
On Tuesday, the state Department of Human Services released more than 2,000 pages of previously sealed documents in the Kema case, an unprecedented action that has again focused attention on what may be Hawaii's most publicized missing child case.
A key finding in the documents is that Peter Boy's then-5-year-old sister told a psychologist in 1998 that she saw her brother dead in a box in the closet and trunk of a car.
Peter Boy's siblings also said their brother was the victim of child abuse and neglect, left to sleep outside in the cold; forced to eat feces, and locked in a car trunk. They said he also had a long-festering wound in his arm before he disappeared.
The disclosure of the documents comes as prosecutors are conducting a review of the evidence in the Peter Boy case, something that has been done periodically since police turned over the case files to prosecutors seven years ago.
Defense attorneys said proving a murder by omission charge may be more difficult than proving murder because there is no body, and no evidence of the cause of death.
"I've never heard of a case where they've proved death by omission without a body," said defense attorney William Harrison. "Omission is a failure to act. You have to prove a person would have survived (with medical attention)."
On the other hand, proving the exact cause of death is not a requirement in a basic murder charge, he said.
"You're basically saying, 'you killed a child,'" he continued. "There's no body, but we have all this circumstantial evidence."
The defendant's state of mind is also important. A murder conviction requires proving the defendants acted "knowingly or intentionally." If the jury finds the actions were "reckless," then the crime is manslaughter rather than murder.
In the Kema case, a manslaughter conviction might still be considered a victory for the prosecution. The penalty is not life in prison with parole, but the defendants could be sentenced to serve up to 20 years in prison.
There is no time limit to file murder charges. But if prosecutors decide to file manslaughter charges, they must do it within the next year or two or the 10-year statute of limitation on manslaughter will run out.
Defense Attorney Brook Hart said if the prosecution decides to file charges, he hopes it's not because of political pressure.
"They have a duty not to bring a case that they can't support in good faith," he said. "The word of a 5-year-old girl, there's got to be a lot more than that."
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