The ruling requiring indictments affects about 50 cases “to varying degrees” that were charged by preliminary hearings without indictments before arraignments in 2nd Circuit Court, said Prosecuting Attorney Andrew Martin.

He and other prosecutors in the state are pushing for a legislative special session to change the law.

In the meantime, the number of grand jury sessions has been increased from up to two a month to one every week for the rest of the year in the 2nd Circuit so the most serious cases can be presented to seek indictments, Martin said. Those cases include homicides, sexual assaults, robberies and Class A drug felonies.

“The community should know we’re doing everything we can to make sure public safety is the primary concern,” Martin said.

The Maui County Prosecutor’s Office is ramping up grand jury sessions for the rest of the year so the most serious cases can be presented to seek indictments, Prosecuting Attorney Andrew Martin said. The move comes in the wake of the Hawaii Supreme Court’s ruling Sept. 8 that determined a preliminary hearing alone isn’t enough for a case to move forward. The Maui News / MATTHEW THAYER photo

The Supreme Court handed down the opinion Sept. 8 in the case of Richard Obrero, who was arrested in 2019 after allegedly shooting a 16-year-old boy outside the defendant’s home in Kalihi on Oahu.

After a grand jury found there wasn’t probable cause to indict Obrero, the prosecution filed a complaint and presented evidence at a preliminary hearing where a judge found probable cause to support charges of second-degree murder, attempted first- and second-degree murder and using a firearm in the commission of a felony against Obrero.

In appealing, Obrero argued that by using the complaint and preliminary hearing process, the prosecution violated state law requiring an indictment or information before a defendant can be arraigned in Circuit Court.

In a 3-2 decision, the Supreme Court agreed.

The history of the law can be traced to 1869, when the Kingdom of Hawaii adopted a law requiring grand jury indictments for most prosecutions, according to the opinion.

The law “guarantees that the State may only prosecute someone for one of Hawaii’s most serious offenses if it has an indictment from ‘ordinary citizens’ and not just a determination of probable cause from a single judge,” said the opinion written by Justice Todd Eddins.

“If the Legislature wants to strip people of the grand jury protections afforded by (the law), it is free to do so,” the opinion said.

In 1982, voters ratified a constitutional amendment allowing prosecutors to charge felonies by preliminary hearing. For 40 years since then, prosecutors have used preliminary hearings as one way of charging defendants in serious cases without also obtaining a grand jury indictment.

In a dissenting opinion, Chief Justice Mark Recktenwald said the amendment “plainly intended to sweep away the grand jury requirement as the sole method to prosecute felonies.”

Recktenwald said “the fact that the Legislature neglected to take an obsolete statute off the books should not be allowed to defeat the intent of the framers.”

Martin said the opinion doesn’t affect cases charged by felony information, which involves a judge reviewing written information to support charges in some felony cases. The opinion also shouldn’t affect cases in which defendants have entered guilty pleas, he said.

Under the ruling, the prosecution can present evidence at preliminary hearings to keep defendants in custody after they are charged with serious crimes, but a grand jury indictment is required before those defendants can be arraigned in Circuit Court.

That means a judge could find probable cause to support charges after prosecutors call witnesses to testify at a preliminary hearing in District Court, “only to tell our victim and witnesses to come back a day or two later to do it all over again in front of the grand jury,” Martin said.

“Imagine how devastating that would be for a sexual assault victim,” he said. “Imagine the challenges posed in a domestic violence case in that scenario.

“It’s a serious situation that needs to be fixed.”

The week after the opinion was filed, the grand jury calendar was filled with cases charging defendants with murder, attempted murder, sexual assault and terroristic threatening, Martin said. “We made those our immediate priority,” he said.

Last week, the grand jury heard some larger drug trafficking cases.

Some of the defendants indicted by grand jury have been arraigned and have had their prior cases that were charged without an indictment dismissed without prejudice. The defendants include at least two who face charges including second-degree murder.

On the day the opinion was filed, a preliminary hearing didn’t go forward in Wailuku District Court for a woman arrested on charges alleging she abused and threatened her husband. She was released before being arrested last week after being indicted on the charges, court records show.

“We’re fortunate we have a receptive Judiciary that agreed to meet with me the day the decision came down,” Martin said.

He said the Judiciary also accommodated the additional grand jury panels.

“Our No. 1 concern continues to be public safety,” he said.

He said prosecutors reviewed more than 130 cases to identify the roughly 50 cases affected by the ruling.

Martin spent Saturday and part of Sunday “calling every single state senator and state representative to try and get their support for a special session,” he said.

“We’re really lucky our delegation here on Maui has been terrific,” he said.

In a statement Monday, after more than two-thirds of House members agreed to convene a special session, Senate President Ronald Kouchi said “we will formally re-engage with our members to determine if we too have the two-thirds majority needed to convene.”

“Finding consensus with our House colleagues and the four county prosecutors on language for a proposed bill that will address the issues raised in State v. Obrero will be critical in determining our next steps,” Kouchi said in the statement.

On Tuesday, Deputy Public Defender Ben Lowenthal said he hadn’t seen any 2nd Circuit cases where defendants were released as a result of the Supreme Court opinion.

“This comes down to the rule of law,” he said. “And if people are released from custody because the prosecutors can’t follow the law, you don’t blame the law.”

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.