2018 Criminal Law Forums Report
| Publication year | 2019 |
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WELCOME AND OPENING REMARKS
William A. Harrison welcomed the attendees and thanked everyone for participating in this important event. He explained that, as in the past, the Forum was organized with the intent of considering significant issues involving the effective administration of justice and the overriding purpose of the Forum was to stimulate ideas and to look for possible solutions to systemic issues, which would lead to improvements in the criminal justice system.
He introduced and specifically thanked Hawai'i Supreme Court Chief Justice Recktenwald whose leadership has been instrumental in supporting these informative Forums and for the commitment of the judiciary in working with other state agencies in encouraging open and effective communication between the bar and the judiciary
Chief Justice Recktenwald expressed his gratitude to the JAC for the Forums and the past Bench-Bar Conferences, which he stated, "evolved into something special." He noted that these Forums and the Bench-Bar Conferences have been a best source of input from the bar, and the judiciary seriously considers the matters discussed and subsequently, identifies innovative ideas for the courtrooms. Chief Justice Recktenwald noted that all four chief judges from the circuits, the senior court administrators, and several judges from across the state were present at the Criminal Law Forum and were there to listen to these discussions.
He explained that after the JAC writes its reports on the Forums and Bench-Bar Conferences, he meets with the chief judges and court administrators to decide on the recommendations that can be feasibly implemented. Subsequently, he writes an article for the Hawaii Bar Journal that reports on the judiciary's efforts regarding the ideas discussed. The Chief Justice said:
It holds us more accountable and enables us to be able to hear from you and get better. I am so grateful to each of you for the time that you are willing to spend. I cannot emphasize enough how important it is to us to be able to get your ideas and hear your thoughts on important issues we will be talking about today.
He mentioned that two years ago the Criminal Law Forum focused on pretrial reform. It was the first significant statewide conversation on pretrial release and bail reform and prompted the legislature to establish a Pretrial Reform Task Force to review the system. That Task Force with 31 members was chaired by Judge Rom Trader, and
Judge Shirley Kawamura served as the reporter, and the Task Force will be submitting its report to the legislature recommending changes to the system.
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The second Task Force that Chief Justice Recktenwald mentioned is the Task Force on Effective Incarceration Policies chaired by Justice Michael Wilson. That Task Force reviewed all aspects of the current prison system, alternatives to incarceration, and prison systems in Europe. A report will also be submitted to the legislature this session.
Chief Justice Recktenwald expressed his appreciation to the Task Forces, chairs, and members for their hard work and thanked the participants for their exchange of ideas.
COURT ISSUES
(Panel: Kevin K. Takata (moderator), Judge Randal Valenciano, Judge Greg Nakamura, Judge Paul Wong, Judge James Kawashima, Brook Mamizuka (ACS Intake-PSI Section Administrator), and Leonard Sen-sui (ACS-Supervision I Section Administrator).
A. Rule 48 and Dismissals
Public concerns regarding overcrowded dockets, which lead to delays that ultimately result in Rule 48 and speedy trial dismissals of cases, have been heavily documented by the media. The commonly cited reasons for the dismissals usually involve (1) court congestion; (2) witness problems; and (3) discovery production and delays.
First Circuit District Court:
Judge James Kawashima indicated that the judges are trying to get a better handle on the number of Rule 48 dismissals. The district courts are using a spreadsheet to keep track of cases in the First Circuit District Court. He noted there are a small minority of cases that are dismissed by Rule 48 violations, as opposed to for example, Rule 9 violations.8
There is a concerted effort by the courts to try to schedule cases so as not to overburden the various court dockets. This has resulted in fewer cases that were dismissed due to overcrowded dockets over the last two years. Recently, there appear to be fewer complaints registered by the parties. The flexibility and cooperation by everyone on both sides have been a contributing factor.
Importantly, the defense has been accommodating in agreeing to and in obtaining continuances as needed.
Other courtrooms have been opened to cover the overflow cases. The prosecution, defense, and judges have also been cooperative in taking those extra cases if dockets permit. Most of the alternate courts have been opened for DUI cases. There have been some issues with the movement of court clerks, who primarily were handling civil cases and were transferred to criminal cases; but this should become less of an issue as the clerks gain experience and training.
The docketing calendar previously discussed was initiated by Judge Ashford when he sat in the DUI court. That calendar helps to see the big picture and allows ready access to the days that are full and those days that are open, so available slots can be filled. It assures more consistency and avoids setting matters that are clearly not able to proceed. This helps remove some of the gamesmanship involved in setting cases.
The court is also limiting the number of cases each attorney can set in a courtroom to eliminate the concerns that some attorneys overbook a date to ensure Rule 48 problems will occur. Therefore, for the most part, the court is taking steps to address congestion issues so that congestion does not become a greater problem.
First Circuit Court:
Judge Paul Wong indicated that they have been quite lucky as there have been very few Rule 48 dismissals in the First Circuit Court. If there are Rule 48 problems, judges are now willing to start two trials a week in their courtrooms to alleviate the Rule 48 problems.
There is a concern, however, in not being able to serve grand jury bench warrants timely as this has led to some Rule 48 problems. Under HRPP Rule 9, a warrant needs to be served without undue delay. In some cases when a defendant is first brought to court, there may already be Rule 48 issues because of the time it took to serve the defendant. This is where most of the First Circuit Court Rule 48 problems arise.
Third Circuit Court:
Judge Greg Nakamura indicated that they have few Rule 48 dismissals in the Third Circuit Court. The other judges in the circuit are willing to accommodate problems by taking trials if necessary.
Fifth Circuit Court:
On Kauai, both Circuit Court judges are willing to cover for one another if there is a Rule 48 issue and a case needs to proceed. Judge Randal Valenciano noted that the Chief Justice instituted a requirement that the courts maintain a Rule 48 monthly report. The Fifth Circuit found a weakness in the system when cases were transferred from District or Family Court to Circuit Court. When a defendant appeared and asked for an attorney, Family Court was calendaring an initial appearance three plus months out. This would, in effect, consume one-half of the Rule 48 clock. Then when a defendant returned to court and requested a jury trial it would take another three weeks to a month for the case to move from Family Court to Circuit Court. By that time, four months would have already been exhausted.
After the court learned of this problem, the court has been trying to compress this time to two weeks, which is still significant in lost time. The court routinely inquires of the prosecution at arraignment its calculation of the Rule 48 date, then based on that date appropriately sets the matter for trial. However, if that Rule 48 date is miscalculated, the court may not learn of this until close to or possibly after the date trial has been set. Another reason for dismissals in the Fifth Circuit is due to Rule 9 issues. Unfortunately, the police do not keep good records of their attempts to serve, therefore it becomes difficult for the prosecution to argue for and meet its burden of proof that service is being affected without undue delay.
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B. Discovery Issues
First Circuit Court:
There are discovery issues in DUI courts dealing with questions of what is potentially discoverable, e-fling problems, and general production delays. Since Rule 48 is not tolled by discovery issues, the court tries to keep close control over such disputes. A new issue that will surely arise is the question of the newly instituted body camera and its producible video evidence and discovery Such body camera discovery is downloaded via a link. Therefore, theoretically,
such discovery should not be a problem.
Questions have arisen whether the video may be tampered with, but that issue has been addressed by the company that provides the download link by providing that link to both the prosecution and defense.
Third Circuit Court:
Judge Nakamura stated there have been no reported problems with body cameras or discovery in the Third Circuit.
Fifth Circuit Court:
It appears that the Fifth Circuit has several practical issues concerning body camera files. On Kauai, the challenge is not obtaining body camera discovery, because it is readily available for counsel to download and view. It is having custody defendants review their body camera discovery. The Department of Public Safety ("DPS") will not necessarily allow defendants the opportunity to review their video discovery. The Kauai DPS facilities do not have the capability of allowing the defendants the ability to review the video evidence. Some of the body camera evidence is quite lengthy, and the facilities have had an issue with any required extensive viewing. Therefore, counsel has alternatively asked...
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