AFTER defending a state judge's exercise beyond her authority in sentencing in a murder case, the city prosecutor's office has capitulated and plans to assemble a jury to determine the sentence. The judge and prosecutors should have recognized the unconstitutional sentencing earlier and avoided four years of unnecessary emotional stress.

Shane Mark shot police Officer Glen Gaspar at a Kapolei ice cream store in March 2003 and was charged with first-degree murder for the killing of a police officer, an offense that results in a sentence of life imprisonment without parole. However, Gaspar was a plainclothes officer and the jury failed to find that Mark knew Gaspar was a policeman, and so convicted Mark in 2004 of second-degree murder, a conviction that automatically results in a sentence of life in prison with the possibility of parole.

That was not enough for Circuit Judge Karen Ahn. The judge cited a Hawaii law allowing a judge to tweak the sentence to a life-without-parole term by deeming Mark to be dangerous to society. Two months earlier, the U.S. Supreme Court had ruled that a jury, not the presiding judge, must decide “;any fact which increases the penalty for a crime,”; a ruling that Mark's attorney had cited at sentencing to no avail.

Prosecutors defended the sentence, maintaining that Ahn had made her determination on the basis of Mark's prior convictions and the multiple felonies included in his conviction. However, according to the Supreme Court ruling, the conclusion that those factors resulted in Mark's being a danger to society should have been for the jury to draw in a proceeding separate from the murder trial, where evidence of past crimes is not allowed.

In a separate case, the Hawaii Supreme Court recognized in March 2007 that Hawaii's enhanced sentencing policies had been rendered unconstitutional by the nation's top court. The Legislature quickly enacted new policies including a second jury stage for deciding if a conviction should lead to a sentence stronger than normal for the offense that had resulted in a conviction.

In a hearing this week before the Hawaii Intermediate Court of Appeals, city Deputy Prosecutor Donn Fudo said his office had conceded that Mark's life-without-parole sentence cannot be supported because it had been determined by a judge, not a jury. Fudo said none of Mark's extended-term sentences can be supported unless a jury arrives at the same decisions as Ahn.

Of the three other murder cases where a second jury stage has been sought, one ended in a deadlocked panel and the other two were withdrawn by the prosecutor's office. Two-stage juries are likely to be used sparingly.