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The State of Aloha

One night in February, police stopped a vehicle near the intersection of Beretania and Piikoi streets in Honolulu. One of the officers saw the vehicle driving on the wrong way into oncoming traffic on Beretania. Other vehicles had to get out of the way and according one of the officers, the vehicle almost hit a moped.

Officers at the scene suspected the driver might be under the influence. The driver told the police she came from the “Anyplace Restaurant,” provided an expired registration card and could not find her proof of insurance card. One of the officers smelled the odor of alcohol and thought her speech was slurred.

When she was arrested under suspicion of drunk driving, she got argumentative. She started declaring “Black Lives Matter” (she’s not Black) and urged the officers to hurry up because she had people to call.

The facts here struck me as a garden-variety drunk driving case. But unlike the hundreds of cases like these across the state, this driver here was Sharon Har, Kapolei’s House representative in the state Legislature. Ironically, she proudly touts her introduction of harsh consequences for those convicted of drunk driving. She has even talked about being the victim of a head-on collision with a drunk driver as her motivation for sponsoring the harsh laws.

It looked like she was caught up, arrested and prosecuted for doing the very thing she’s spent her public career railing against. This kind of drunk driving is a petty misdemeanor, which means in Hawai’i the district court judge, not a jury, heard the state’s evidence and had to decide if the prosecution proved Har’s guilt beyond a reasonable doubt.

Har hired Howard Luke, a stellar defense attorney. Luke drew out inconsistencies between the officers’ testimony and their reports at trial. He raised procedural defects in the charge. And in the end, the judge found Har not guilty. The judge concluded that the evidence did not arise to proof beyond a reasonable doubt of intoxication. And with that, Har’s case was over.

Honolulu’s head prosecutor, Steven Alm, a former judge and federal prosecutor, was disappointed with the ruling. That’s to be expected too. But he was so disappointed that he held a press conference to publicly air his grievances with the court’s decision.

The prosecution of Sharon Har — and the press conference that followed — has turned into something like a Rorschach test for lawyers. For some, the press conference was what you can expect from elected prosecutors.

In places where people get to vote for their prosecutor — like Honolulu, Kauai and Hawaii island, but not like here — it’s not uncommon to display disappointment, anger and dismay at an acquittal. After all, elected prosecutors have constituents and many want to look tough on crime and intolerant of those whom they feel should be held accountable. It also, so the argument goes, instills a degree of confidence in Joe and Jane Public that their prosecutor is actively doing something about criminal behavior. That’s certainly one view.

For others, the press conference was distressing. The United States has already become a deeply polarized society. Leading scholars and experts have been telling us that people are losing trust in democratic institutions like our legislatures and our courts.

A prosecutor who lost in court holding a press conference to air grievances with the judge’s ruling erodes the confidence people have in our court system. It can be interpreted as a sign of disrespect for the institution, the time-honored proof-beyond-a-reasonable-doubt standard, and the rule of law itself. Yale historian and specialist on 20th century totalitarianism, Timothy Snyder, has been desperately urging us to defend our institutions if we wish to keep them. The effect of a press conference like this might do the opposite.

And then there’s the viewpoint of my colleague. He wasn’t that interested in the press conference. He didn’t even quibble that much with the judge’s ruling. He felt that the whole affair highlighted the inequality in our justice system. Har’s acquittal seemed to be based on inconsistencies between officer testimony and what they wrote in their report — arguments that are raised (and often rejected) in district courts across the islands. What was the difference between Har’s case and hundreds of similar cases when the defendant is less politically connected and wealthy?

It looked like two systems of justice. One for the indigent who can’t afford big-name attorneys, who have the time and resources to pull out all the stops for their defense. And one for Sharon Har.

That difference is stark in Honolulu, where district court sessions for the indigent are held on different days and with different judges than those who hire their own lawyer. For my colleague, that is more egregious than Har’s driving and more corrosive to democracy than a press conference.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.

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