LIHU‘E — Calling some statements county Prosecutor Shaylene Iseri-Carvalho made to a grand jury “irresponsible” and “sloppy,” 5th Circuit Judge Kathleen Watanabe on Wednesday dismissed 32 counts of incest against Kenneth Bray of Kapa‘a. “I’m surprised that caution was not
LIHU‘E — Calling some statements county Prosecutor Shaylene Iseri-Carvalho made to a grand jury “irresponsible” and “sloppy,” 5th Circuit Judge Kathleen Watanabe on Wednesday dismissed 32 counts of incest against Kenneth Bray of Kapa‘a.
“I’m surprised that caution was not taken,” Watanabe said before dismissing the 32 counts without prejudice.
Lisa Arin, county deputy prosecutor, said she plans to re-file the charges.
Remaining are 34 counts of sexual assault, with 32 of them being first-degree sexual assault, a class A felony, and two counts of third-degree sexual assault, a class C felony. The incest charges are class C felonies.
Bray was 62 years old when he was arrested Sept. 1, 2009, for the alleged sexual assaults against his daughter, according to Kaua‘i Police Department records.
At the center of the controversy are three words spoken by Iseri-Carvalho, clearly audible on the grand jury DVD played in Watanabe’s courtroom: “the same charge.”
Iseri-Carvalho was telling the grand jury that counts 35 through 66 in the 66-count indictment against Bray are for the same charge — incest.
Craig De Costa, Bray’s attorney, argued that the improper instructions given to the grand jury by Iseri-Carvalho effectively denied Bray’s due-process rights that each count against him be considered separately.
Both Watanabe and De Costa called that “prosecutorial misconduct,” with De Costa making a motion to dismiss the incest charges based on such.
Watanabe granted that motion, though Arin argued De Costa had not proven that Iseri-Carvalho had improperly instructed the grand jury and there is evidence to show that the grand jury members did consider and vote on each count individually.
Arin said a five-minute span of time on the DVD where there was no conversation is the time members of the grand jury were reading over each individual count in the indictment.
Watanabe ordered the first part of the DVD played three times in open court Wednesday, and each time Iseri-Carvalho is clearly heard stating counts 35 through 66 are the same charge, incest.
Watanabe said she was not convinced Bray was given individual consideration of each count by the grand jury.
The judge admonished the prosecutors, adding that if they intend to re-indict Bray on the incest charges to “do it correctly.”
Just because the grand jury proceedings are conducted behind closed doors “should not excuse the highest level of professionalism,” Watanabe said.
De Costa also made a motion to dismiss the sexual-assault charges against Bray, saying prosecutors had not shown “strong compulsion” that Bray forced his daughter to have sex with him.
Watanabe denied that motion, saying the victim suffered lots of trauma, conflicted feelings of not wanting to have her father mad at her, and even now at age 32 is still afraid of doing something that will anger her father.
All of that supports a finding of probable cause to allow the sex-assault charges to stand, the judge said.
The DVD of the daughter spelling out the years of sexual assault she endured from ages 13 to 31 at the hands of her father is “so telling” about the dynamics of incest and sexual assault, Watanabe said.
“I have to tell you that it’s a real struggle for this court to do this based on the seriousness of the charges,” Watanabe said of dismissing half the charges against Bray. But people have their rights, she added.
Regarding his motion to have the sex-assault charges dismissed, De Costa said “suggestions” and “plans” referred to by the victim on the grand jury DVD for the father and daughter to have sex did not rise to the level of strong compulsion on the part of the perpetrator.
“These do not equate to strong compulsion,” he said. “There’s no ‘demand’ on the record.”
Arin argued that the 18 years of sexual abuse, which started with threats from the father that he had hit her with a belt or keep her from her sisters if she didn’t comply with his wishes, equated to threats of kidnapping or physical violence.
• Paul C. Curtis, assistant editor and staff writer, can be reached at 245-3681 (ext. 224) or pcurtis@kauaipubco.com.
