LIHUE — At least five separate criminal cases on Kauai have been dismissed in the last month because police and prosecutors failed to pursue charges in a timely manner.
Since July 1, Fifth Circuit Court judges have thrown out a dozen charges — half of them felonies — due to delays caused by police failing to serve warrants for months on end or by county prosecutors neglecting to bring cases to trial within the legally allotted amount of time.
Fifth Circuit Chief Judge Randal Valenciano felt compelled to address the matter during a recent court session:
“The problem here is what has been, and continues to be, an issue with the police department — they don’t track their efforts to serve warrants,” Valenciano said before granting a motion to dismiss charges against an Anahola woman accused of injuring an 8-year-old child in a car accident while driving under the influence of drugs.
“Part of the failure is a lack of records,” Valenciano said a half-hour later, when he was forced to toss out yet another case — this one involved a Kilauea man facing multiple felony charges related to identity theft and heroin and methamphetamine possession — for essentially the same reason.
Deputy Prosecuting Attorney Ramsey Ross admitted that his office failed to bring the case to trial within the six-month period required by law. But in a motion addressing the unnecessary delay caused by police, Ross said that the 190 days it took for Kauai Police Department officers to execute the warrant was not long enough to infringe upon the man’s right to a fair trial.
“The state has no way to ascertain whether defendant was available for service while the bench warrants was outstanding or whether defendant intentionally avoided service,” Ross wrote in a July 19 motion, adding that because the man was “reportedly homeless,” police officers “might not be able to locate him if they tried.”
According to state Deputy Public Defender Melinda Mendes, her client was not actually homeless at all, and the reason it took six months to serve the warrant was because police never tried to track him down.
“If you bother to even knock on the door — Kauai is a very small island — they would have found him easily,” she said during Thursday’s hearing.
Mendes argued that the Prosecuting Attorney’s office was also at fault, claiming that on top of the anxiety and distress she said her client suffered during the year he spent in limbo prior to his arrest, he was forced to sit in jail for nearly three months because prosecutors were not proactively pursuing the case.
“They have the case. They throw it in a file and ignore it,” Mendes said during the July 25 hearing. “Six months go by, and they don’t even bother.”
The two cases dismissed on July 25 were not unique. At least three other people have had charges against them dropped for what those in the legal profession refer to as “want of prosecution.”
On July 16, charges against Dane Woodworth, a man accused of assault and breaking into a car, were dismissed after his public defender filed a memo arguing that “the state’s interests in pursuing a case in which a bench warrant was outstanding for over five years are far outweighed by fundamental fairness to (the) defendant and the orderly functioning of our courts.”
A week before that, Fifth Circuit Judge Kathleen Watanabe threw out a felony case involving a Waimea man prosecutors tried to arraign nearly two years after he allegedly broke into a woman’s home.
“It took them about 16 months to arrest my client,” Kaleb Libre-Palacio’s court-appointed attorney said during a July 8 hearing, arguing that the state’s attorneys “failed miserably” in their attempts to prosecute the case. Libre-Palacio was inadvertently notified of the charges a year and a half after a warrant was issued for his arrest, when police stopped him on the street and asked for identification.
The first case in July to get thrown out due to slow prosecution was Stephen Emayo’s. His attorney came to court on July 1 ready to argue for dismissal on the grounds that the prosecuting attorney had already violated her client’s rights on multiple occasions, and was, in any case, almost assuredly unable to produce a complaining witness.
But when the case was called, the prosecutor wasn’t ready to proceed and asked the judge for a continuance, noting that the time limit was expiring that day.
“This has been an interesting series of events,” Watanabe said. Before terminating the case, Watanabe described a series of motions filed by the prosecutor to delay or modify the case, which she said were “quite disconcerting.”
“We will simply refile the case,” Prosecuting Attorney Justin Kollar said in an email responding to questions about the recent spate of dismissals. His comment was specifically in reference to a case that was dismissed without prejudice, a stipulation that allows prosecutors to start the case again and file identical charges based on the same allegations.
Four of the cases and half of the charges that were thrown out last month were dismissed with prejudice, meaning the alleged crimes can never be prosecuted. Whether to dismiss a case with or without prejudice is left to the discretion of the judge, who bases the decision on several factors.
“I have to balance the interests of the state with fairness to the defendant, with the added ingredient of the orderly function of the court,” Valenciano said, explaining his ruling in one case dismissed without prejudice.
Kollar said he intends to reinstate the felony charge,
Kollar sent the following statement explaining some of the potential reasons a case may be delayed from the perspective of law enforcement:
“Cases involving traffic crashes take a long time to investigate by their very nature. There is a lot of reconstruction that needs to be done, recall notices reviewed, service records pulled, toxicology/lab results to wait for, etc. It is not uncommon for a thorough investigation, in any jurisdiction, to take more than a year – although KPD has dramatically reduced that time in recent years.
“Typically, it will be a 3-6 month window for the investigation to be completed. Additionally, and again, because of the nature of these cases, a victim may not be able to participate in prosecution for months after the incident takes place. Because the severity of an injury is an element of the case, that can also result in further delays.”
According to KPD Assistant Chief Bryson Ponce, the problem with their records began when the department transitioned to an electronic database used to manage and issue warrants.
“This new system eliminated the hard copy paper warrants and service control forms that KPD used in the past to manually write down and track service attempts for outstanding warrants,” Ponce said via email last week. “Currently, KPD is looking at other potential avenues to track attempts for service.”
Ponce went on to point out that the issue has been exacerbated by a shortage of officers in the department, a problem that has grown increasingly severe in recent years.
“KPD is doing its best to serve warrants as quickly as possible with the resources available,” he said. “Although we are experiencing a staffing shortage of nearly 20 vacant sworn officer positions, KPD has served 692 warrants, or about 80 percent, out of the 862 warrants issued by the courts this year.”
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Caleb Loehrer, staff writer, can be reached at 245-0441 or cloehrer@thegardenisland.com.
