LIHU‘E — Koloa man Kristofer Dwight Bush is facing a range of felony charges, including attempted murder, for an April incident where he allegedly attacked his girlfriend and her family with pepper spray before stabbing her and her brother.
With the recent state Supreme Court ruling in State v. Obrero, the case against him is now up in the air.
In Obrero, the court decided that the case against an O‘ahu man charged with shooting a 16-year-old boy in a disputed interaction was “unlawful” because he was charged by criminal complaint rather than a grand jury.
That ruling leaves other felony cases charged by criminal complaint — like Bush’s — at risk of being dismissed.
“The Hawai‘i Supreme Court decision in State v. Obrero will undoubtedly affect us, and it will have some impact on how we charge cases going forward,” said county Prosecuting Attorney Rebecca Like in a statement to The Garden Island. “Our office has been actively discussing the possible implications of this case since the oral arguments took place.”
Cases are sometimes charged by criminal complaint due to lack of availability of grand juries. Once a person is arrested, they must receive a hearing within a certain time frame, and a grand jury is only available limited number of days. If the grand jury is unavailable, prosecutors will sometimes resort to charging via criminal complaint in order to keep the defendant in custody. Another method of charging, called information, can also be used, but it is restricted to certain offenses.
In other instances — like the Obrero case — a grand jury votes against allowing a prosecution, but prosecutors move ahead with the case anyway, using a criminal complaint.
Obrero is already having an impact on the way new cases are handled by Kaua‘i prosecutors.
“All felony cases going forward will be charged via information and grand jury,” said Like. “We are doing what we can to increase the availability of the grand jury. Action has already been taken to increase their availability through the end of this year.”
Like said that while she expected some cases would “likely be dismissed,” it would be significantly less than in other islands, where the use of criminal complaints is more prevalent.
On O‘ahu, for instance, prosecutors have identified 160 people who were charged with serious crimes by criminal complaints whose cases now have to go before a grand jury for an indictment, according to a report from Hawai‘i News Now.
Like did not have an estimate of how many cases are at risk of dismissal on this island.
Public Defender Kenji Akamu — who represents Bush — agreed with the idea that it would have less of an impact on Kaua‘i than other islands.
“It affects a relatively small percentage of cases (on Kaua‘i),” said Akamu. “In terms of big picture, I don’t think it will have too much of an effect.”
He reported his office receives one or two cases charged by criminal complaint a month.
“In the cases it does apply to, I don’t think a motion to dismiss will be filed in every case. Some clients just want to resolve the case, or they’re in the middle of plea negotiation,” said Akamu.
At the Lihu‘e courthouse Thursday morning, Akamu made a motion to dismiss the Bush case based on the Obrero ruling. If this motion is upheld, prosecutors would have to start from scratch and convene a grand jury to charge him again.
“Although the prosecution initiated this prosecution by way of a preliminary hearing, (they) failed to present evidence before a grand jury and no true bill has been found,” wrote Akamu in his motion to dismiss. “Mr. Bush has been unlawfully subjected to a trial and sentence. Without a pre-arraignment indictment, this case must be dismissed.”
Fifth Circuit Chief Judge Randal Valenciano was uncertain about the effect of the Obrero ruling when Akamu brought up the motion Thursday.
“I’m aware that people are interpreting Obrero in different ways,” said Valenciano.
The state Senate announced Monday it may convene a special session to address the issues raised in Obrero.
“The Senate has been advised of the concerns of the four county prosecutors regarding the potential impacts raised by the Hawai‘i Supreme Court’s opinion in State v. Obrero and we are in conversation with our members, our House colleagues, and the Judiciary, to assess appropriate next steps,” said Senate President Ron Kouchi, a Democrat who represents Kaua‘i and Ni‘ihau.
Article III, Section 10 of the Hawai‘i State Constitution outlines the process to convene a special session: “….At the written request of two-thirds of the members to which each house is entitled, the presiding officers of both houses shall convene the legislature in special session. At the written request of two-thirds of the members of the senate, the president of the senate shall convene the senate in special session for the purpose of carrying out its responsibility established by Section 3 of Article VI. The governor may convene both houses or the senate alone in special session.”
•••
Guthrie Scrimgeour, reporter, can be reached at 808-647-0329 or gscrimgeour@thegardenisland.com.
