Judge singled out for prosecution

Second Circuit Family Court Judge Mimi DesJardins has, in essence, been forced to retire and plead no contest to tampering with a government record, a misdemeanor.

What did she do to deserve this drastic action? The answer regrettably demonstrates a near complete loss of perspective by our highest judicial officers and the committee responsible for oversight of judges.

What happened?

It goes like this: The law requires that an arrested person be released or that the charges against him be reviewed by a judge no later than 48 hours following the arrest. In this case, a person was arrested at 1:15 p.m. on a Thursday and thus was entitled to release or review by a judge by 1:15 p.m. Saturday. The Saturday deadline expired. An hour and 15 minutes went by. Even though the deputy prosecuting attorney and police were present and fully aware of the requirement throughout this period, they failed to release the suspect. Instead, the supervising deputy prosecutor and, indeed, the prosecuting attorney himself were telephoned. In violation of the provision imposing criminal penalties on those holding a suspect longer than 48 hours, they instructed that the arrested person be held until the on-call judge made a decision. DesJardins, who was the on-call judge, arrived at about 2:15 p.m., well after the 48 hours had expired. She noticed, however, that she had found probable cause in the same case the day before and well within 48 hours. At that time she had reviewed an identical affidavit pertaining to the suspect’s co-defendant. (It is common for police officers to prepare identical affidavits when co-defendants together commit an offense.) For that reason, and because of the police and prosecutors’ concerns about releasing the suspect, she entered the time of her review as 1 p.m. on the appropriate form. She likewise entered times between 1 p.m. and 1:25 p.m. on forms pertaining to several other arrestees. All of these suspects, however, had not been held 48 hours and thus were in no way prejudiced.

Should DesJardins have entered the wrong time on the forms indicating her review? Of course not. Technically, she violated the tampering statute. But should she be singled out for prosecution when the police and prosecuting attorneys themselves violated another, more important law? I think not. I doubt any member of the Maui community aware of these facts would reasonably doubt DesJardins’ integrity.

The real tragedy for the people of Maui is the loss of DesJardins’ services. The Family Court where she served is the most difficult job in the Maui judiciary. It deals daily with dysfunctional families under great stress – divorce, custody of young children and domestic abuse, often involving drug and alcohol abuse.

Since her appointment last year, DesJardins has been a great asset to the Family Court. As one Family Court practitioner told me, “We finally get someone who gets it and gets it fast and now this. It’s nuts.” I agree. I am dismayed that the Judicial Discipline Committee as well as the chief justice have so little common sense and apparently are so afraid of negative publicity that they could not impose some lesser discipline permitting our best Family Court judge to remain on the bench.

And what about the police officers and prosecutors who disregarded the law?

* E. John McConnell is a retired 2nd Circuit Court judge.