Most Mondays FIJA hosts a brief Zoom session covering highlights of recent jury-related news and how it intersects with jury nullification as well as FIJA goings on and other related items of interest we come across. It is followed by a short Q&A session to address any questions about the session topics or other jury-related questions. This is an abbreviated summary of the presentation on 26 September 2022, not including the Q&A.
Click here to register for the live sessions through the end of December 2022.
Hawaii Legislature Aims to Kill Grand Jury Protection of Individual Rights
Two weeks ago, I discussed a recent Hawaii Supreme Court ruling that upheld the protection of a grand jury against a prosecutor’s attempt to circumvent its refusal to rubber stamp government charges.
Richard Obrero was prosecuted for second-degree murder, attempted murder in the first and second degree, and use of a firearm in the commission of a separate felony. These are, of course, very serious charges, but keep in mind that we are presumed innocent until proven guilty, and of course, Obrero was far from being convicted.
That is in part because, despite the reputed ease with which the government is able to lead modern grand juries by the nose into indicting virtually anyone, a grand jury reviewed the State’s proposal to indict Obrero on 9 charges and no billed every single one of them. That means they refused to indict on any of the charges.
The State was undeterred. A few hours later that very same day, they tried to get a do-over on 6 of the 9 offenses using another mode of initiating a prosecution—charging the accused via complaints at a preliminary hearing before a district court.
A very split Hawaii Supreme Court ruled that under HRS § 801-1, which it said was not invalidated by a 1982 state constitutional amendment regarding grand juries, that “The State cannot subject Obrero to trial and sentencing without a grand jury indictment.”
The State immediately started squawking the familiar tune of Chicken Little that “the sky is falling! the sky is falling!” The Honolulu prosecutor’s office claims that unless the law is changed immediately to give it the power it has been illegally wielding for years, 168 people convicted of felonies could be released. Other reports claim that nearly 400 convictions statewide are in jeopardy. Prosecutors are clamoring for a special session of the Hawaii legislature to legalize their prosecutorial misconduct and usurp Hawaiians’ grand jury rights.
A couple of days ago, it looked like this special session was unlikely to happen. Hawaii Governor David Ige declined to call a special session, saying that “Any new legislation would be prospective only, so I don’t see the sense of urgency to try to implement a change. Until we have consensus on what changes would be necessary, I believe it’s premature to talk about a special session.”
The only other way for a special session to be called is by a consensus of 2/3 in each of the House and Senate. As of Friday, Senate President Ron Kouchi said such a session seemed unlikely as the House did not seem to have the consensus necessary for its 2/3 majority. But just hours ago the Honolulu Star-Advertiser reported breaking news that House Speaker Scott Saiki has sent a letter to Kouchi informing him that the House now has the 2/3 consensus.
I will be looking into the Hawaii legislative process in the hopes of tracking down the information that those who wish to fight for their rights will need to make their voice heard. Stay tuned!
State House has consensus for special legislative session on Hawaii Supreme Court ruling, Honolulu Star-Advertiser, 23 September 2022
State puts off special session meant to tackle controversial state supreme court ruling, Hawaii News Now, 24 September 2022
Special legislative session to address Hawaii Supreme Court ruling on felony charging seen as unlikely, Honolulu Star-Advertiser, 23 September 2022
Hawaii Honolulu Prosecutor’s Office Seeks Special Session to Reverse High Court’s Grand Jury Decision, Honolulu Civil Beat, 19 September 2022
Child Victim of Sex Trafficking Robbed of Her Jury Rights
The National Association of Criminal Defense Lawyers defines the trial penalty as the penalty that “results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.” Large discrepancies between what the prosecution says is fair if you cop to a plea deal and what the prosecution will try and extract from you if you exercise your right to trial by jury become coercive tools to make it so unwise to exercise the right to trial by jury that effectively you no longer have that right. It is basically there on paper and worthless to you in practice. The NACDL, in a 2018 report on the trial penalty, pointed out that “When a prosecutor offers to reduce a multi-decade prison sentence to a number of years — from 30 years to 5 years, for example — any choice the defendant had in the matter is all but eliminated.”
What happens, then, when a 15-year-old child sex trafficking victim is charged with first-degree murder for stabbing to death a man she reports repeatedly raped her? Does she go to trial knowing that if convicted she will be sentenced to mandatory life in prison with no possibility of parole? Or does she take a plea deal, even if she might have been shown mercy by a jury sympathetic to her plight?
In the case of Pieper Lewis, the answer is that she forfeited her supposedly Constitutionally-guaranteed right to trial by jury and took a plea bargain—arguably the only sane thing to do given the circumstances.
The prosecution knew perfectly well that the mandatory sentence for a first-degree murder conviction is life without parole—which is a lot different for a 15-year-old than for, say, a 40-year-old or a 65-year-old. They were willing to put a child in prison for 50, 60, or 70 years. Under her plea deal, though, it looks like she could have been sentenced to a maximum of 20 years.
Let’s do the math here. AT MOST, 20 years is what the prosecutor thought a reasonable punishment for what she did. The extra 30, 40, or 50 years, depending on how long she survived behind bars, was all punishment for exercising her Constitutionally-guaranteed right to trial by jury.
This story ended up about as well as could be expected, with Lewis being sentenced to no further incarceration beyond her pretrial detention, five years probation, a $150,000 payment to the family of her alleged rapist, a few thousand dollars in restitution to the state, and a few hundred hours of community service.
But a happy-ish ending in this case ought not to be reason for us to ignore the extremely coercive use of the non-constitutional process of plea bargaining to have drive our—again, supposedly Constitutionally-guaranteed—right to trial by jury to the brink of extinction. I cannot say it too much: without trial by jury, there is no jury nullification.
Any chance she would have had at having jurors who would take into consideration her entire situation, the incredible abuse she had endured at such a young age, and be willing to either just forgive her completely or convict on a lesser charge with a more reasonable penalty—that went out the window as soon as they decided to prosecute her for first degree murder.
Des Moines teen Pieper Lewis, who killed alleged rapist, gets probation, deferred judgment, Des Moines Register, 15 September 2022
Trafficked teen who killed alleged assailant given probation as ‘second chance’, The Washington Post, 14 September 2022
The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers, July 2018
FIJA Feature
We have not done a formal fundraiser in a LONG time, and we are falling behind on our annual goal. About 75% of the way through the year, donations are less than 65% of the way to our $50,000 annual fundraising goal for this year.
Like everyone else, inflation is making it harder to cover costs and that goal is starting to feel a little leaner than it should be. There is a fair bit of post-Jury Rights Day printing that needs to be done, including a couple of brochures as well as the 2023 Jury Rights Calendar. A number of printers are indicating that they are having to increase their prices, and shipping costs have recently gone up as well. Nonetheless, we are hoping to get the Jury Rights Calendar in the mail to you much earlier than has been possible in recent years!
Click here to make your contribution to help ensure fully informed juries for all!
15 Minutes with FIJA - 26 September 2022