LIHUE — Plea bargains, said Prosecuting Attorney Justin Kollar, are a balancing act.
“Anyone who comes to observe our court proceedings will see defendants marching in basically every day and pleading guilty in felony and misdemeanor cases that will affect their rights for the rest of their lives,” he said. “They do it because we negotiate fair deals that address the need for accountability with the appropriate level of compassion.”
During a recent budget meeting, Kollar told members of the County Council that some of his office’s conviction rates had gone up — between 86 percent and 94 percent, with property crimes being the highest — while other rates had remained steady. He also said the office closed 479 misdemeanor cases in 2015.
To properly evaluate the prosecutor office’s performance, County Council Chair Mel Rapozo said Kollar should include the reduced penalties received by the offender into the “cases closed” statistic. He asked how Kollar would know whether those misdemeanors were as charged or if they had started as felonies. Rapozo told Kollar to start keeping better statistics on plea bargains.
“I am not happy at all with these plea bargains. I am not happy with these victims that I have heard from that have said they have not been adequately represented,” Rapozo told The Garden Island. “That is something that I have shared with the prosecutor. At the end of the day, I can only hope that these cases had been looked at better. There are plenty of options, before you plead a case down from a felony to a misdemeanor.”
The Office of the Prosecuting Attorney received 318 domestic violence cases in 2015 and charged 155 of them as abuse of family or household member, according to the Hawaii State Judiciary’s Public Access Website.
Twenty-eight of those cases were felony abuse cases and 128 were misdemeanor cases. About 46 percent of the cases charged were plead down or had reduced sentences, according to Hoohiki statistics. Twenty-eight cases were dismissed altogether.
Another 20 percent of cases are still pending in circuit court, according to Hoohiki statistics.
Plea bargains are sometimes a necessity, Kollar said.
The Kauai OPA recently reached a plea deal with 44-year-old Ray Kuna Harada, who pleaded no contest to three charges — one count for each case — including one count of assault against a law enforcement officer, bail jumping and an amended charge of first-degree terroristic threatening, reduced from first-degree robbery. The charges are all C felonies. The state dropped two class A felonies and a class B felony.
Members of the organization Citizens Against Thieves called the prosecutor to ask about the plea bargain and why it had agreed to the terms. Kollar said the key witness lacked credibility.
“It’s easy to take a ‘lock them up and throw away the key’ approach, but frankly it is impossible for our community to incarcerate its way out of the problems we face,” Kollar said.
The average cost to house inmates in Hawaii is $140 a day, which includes health care, administrative costs and corrections program services such as education, job training and their food, said Toni Schwartz, spokeswoman for Department of Public Safety.
‘Beyond a reasonable doubt’
When a person is charged with an offense, they have the right to have a trial, heard either by a judge or jury, said Ronette Kawakami, associate dean for Student Services at the UH William S. Richardson School of Law.
“Even if the person charged committed the offense, they have the right to require the state to prove the case beyond a reasonable doubt,” Kawakami said. “Sometimes — some people say, oftentimes — the person is not charged with the appropriate offense. Maybe the right charge is manslaughter, not murder. Or assault in the first degree, and not attempted murder.”
A plea bargain gives the prosecution the opportunity to get the charge right, provides an opportunity for the defense to be charged with the appropriate charge, and a possible reduced or more appropriate sentence that is guaranteed, Kawakami said.
“It also provides the opportunity for some defendants to consolidate cases,” she said. “In the end, the benefit to the community is judicial economy and faster justice for everyone.”
She said of the thousands of cases that are charged each year, only a small percentage actually go to trial.
“If every defendant exercised their right to trial, the criminal justice system would be backlogged for years,” she said. “I would guesstimate that 90 percent of all cases result in a plea, and 10 percent go to trial.”
But there are downsides to plea deals, too.
“Defendants who are innocent will take the plea offer because of the fear there is a chance they will be wrongfully convicted at trial, resulting in a harsher sentence,” Kawakami said.
Every trial is a risk, she said.
“You can do your absolute best at trial, and you can be the best trial attorney around, but you can never predict with absolute certainty what a jury will do,” she said. “A plea bargain, for the most part, is a guaranteed outcome if the judge has bound him or herself to follow the agreement. So when the prosecution enters into a plea agreement, they are guaranteeing a conviction on an offense, and possibly also a sentence.”
Other times, witnesses are the problem, said Kenneth Lawson, faculty member at the University of Hawaii William S. Richardson School of Law.
“Basically, it comes down to how strong your case is,” he said. “When you’re dealing with addicts, you know they are not reliable. The prosecutor knows this, too. These prosecutors are doing what they can to get the victims to testify.”
Stats disprove ‘95% of cases settle’ myth
John Barkai, professor of law at the University of Hawaii, has been studying civil settlements to dispel the myth that “95 percent of civil cases settle.” For civil cases, he found that 80 to 85 percent of cases do settle. Barkai and Elizabeth Kent, the director of the Hawaii State Judiciary’s Center for Alternative Dispute Resolution, published the result of their comparative study on civil cases in 2014.
“What they probably mean is that if 5 percent of cases go to trial, then the other 95 must settle,” Barkai said. “But they neglect the cases that were dismissed, transferred, become inactive or other. We are in the process of showing that ‘95 percent of criminal cases end in a plea’ is also a myth.”
Barkai began by sending surveys out to attorneys across the Hawaiian Islands earlier this year. He found that about 70 to 75 percent of criminal cases end in plea bargains, instead of the 95 percent that is so often touted. His unpublished work on criminal cases is still being compiled.
Barkai also said only 14 states provide useful statistics on plea bargaining. Hawaii is not one of them.
Dave Koga, spokesman for the Honolulu prosecutor’s office, said his office doesn’t keep statistics on plea negotiations with the defense bar.
There are a number of reasons why it would enter into one, including sparing a victim having to testify in a trial, he said.
“In one of our recent cases, a pimp agreed to plead guilty to second-degree promoting prostitution and serve a 10-year term rather than go to trial for first-degree promoting prostitution and face the possibility of 20 years in prison,” Koga said. “What is important to know is that the victim is always informed when our office is considering a plea deal, and nothing is agreed to without the victim’s consent and approval.”
Lawson said he can imagine the police officer’s frustration after a prosecutor bargains down in a plea deal.
“Because you know you’re probably going to see that guy again,” he said. “But if the system didn’t allow for plea bargains, the justice system would come to a grinding halt. Most of the cases going into the courthouse end up in a plea bargain. There has to be a happy medium for people receiving appropriate sentences and victims getting a resolution.”
Understanding plea deal process
Kollar said sometimes the investigation after the arrest leads to a different understanding of the facts or circumstances of a case.
“A plea agreement isn’t a function of our office just deciding to be generous for no reason; any number of factors come into play, including witness availability and credibility, availability of evidence and offender history as well as the presence of mitigating or aggravating circumstances,” he said.
His opponent in the Aug. 13 primary election, former prosecutor Lisa Arin, has been critical of Kollar about plea deals his office has given to defendants by calling them lenient.
Arin said they have had “a negative impact on the safety of our community, (have) served to dishearten our hardworking KPD officers, and (have) functioned as one catalyst to motivate me to run for Kauai prosecutor.”
Kollar said cases can be hindered by the credibility of witnesses, particularly if the case centers around drug or alcohol abuse.
“Credibility matters because if you bluff about facts that can’t be proven, or make claims about witness testimony that can’t be backed up, the system breaks down and the community suffers,” Kollar said. “Defense lawyers, judges and juries are pretty good at detecting empty posturing, and if we start to go down that road in the interest of sounding tough in an election year, it will just end up in more cases getting dismissed, more acquittals, and a community that’s less safe.”
In June, Francisco Keola Manuel was sentenced to 20 years in prison for manslaughter. He had originally been charged with second-degree murder, but a plea deal reduced his charges.
Kollar said their key witness wanted to claim Manuel was acting in self- defense. The way she testified at sentencing is a piece of how she could have testified at trial, he said.
“It’s on us to make sure that person is in prison because it’s necessary to protect the community, not just to pad our egos at taxpayer expense,” Kollar said. “And when we tie a felony conviction on a person, we’re making it that much harder for them to successfully participate in society in the future; so it’s on us to make sure we’re insisting on that felony for the right reasons when we do insist on it, and not just to pad our statistics.”