| • | Part one: Acquittal rate of prosecutor's office questioned |
By Rob Perez
Advertiser Staff Writer
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In 2002, Dominic Bardi, a college student with no criminal record, was charged with one of the most serious crimes on the books — attempted murder.
Bardi was forced to wear an electronic monitoring device and undergo weekly drug testing. His grades plummeted. He faced the possibility of life in prison.
Eleven months later the charge was dropped. Nothing was filed in its place.
"This never should have been prosecuted," said Al Bardi, Dominic's father. "They stuck with a bad idea for a long time with no proof."
Prosecutors say the charge was supported by testimony that later was undermined by further investigation.
But critics say Bardi's case illustrates a problem with the city prosecutor's office: an inconsistent record in screening cases before charging suspects and going to trial.
While the majority of cases are evaluated without any major hitches — and most are settled even before getting to trial — enough questionable ones surface that defense attorneys say something is amiss.
The evidence either is so flimsy that it raises major doubts about guilt, or the case doesn't seem worth pursuing given the minor nature of the alleged offense and the resources required to prosecute, defense attorneys say.
"You see really strange cases being prosecuted and you can't understand why," said criminal defense attorney David Bettencourt.
Myron Takemoto, who left the prosecutor's office in November after 10 years there to start his own law firm, said a faulty screening process and a rigid policy of refusing to plea bargain certain cases meant that some went to trial that shouldn't have.
"You walked in and knew the jury was going to have problems with them," Takemoto said. "Some of the cases that came through the system were ridiculous."
Prosecutor Peter Carlisle and others in his office said defense lawyers' criticisms should be viewed skeptically given that they're paid to represent their clients' interests. Carlisle said the screening system is working as it should.
That Honolulu prosecutors obtained "guilty as charged" convictions in 90 percent of felony cases over the past five years, mostly through pleas, which indicates the system is working, Carlisle said.
"If we weren't screening properly," he said, "why would so many people be pleading guilty as charged?"
But the same statistics detailing the 90 percent rate show Carlisle's office lost one-third of its felony trials the past five years, raising questions about whether prosecutors sufficiently evaluate cases before taking them to court.
The trial losses represented 3 percent of the more than 10,700 felony cases that were handled by Carlisle's office and resolved over the past five years. Most of the remaining cases were resolved without trials because defendants pleaded guilty.
Prosecutors should know the tendencies of the local jury pool as well as anyone, and the fact that they've consistently lost every third case, whatever the reasons, indicates the evaluation system itself needs evaluation, several experts said.
"If they're getting that many acquittals, I'd try to figure out why," said Barbara Bergman, a University of New Mexico law professor who recently became president of the National Association of Criminal Defense Lawyers.
Prosecutors say they would like to have strong evidence and witnesses in all cases, but sometimes they have to go forward with what they have, as long as the facts warrant it.
In the end, the jury — or the judge in a bench trial — makes the call.
"You never have all the evidence," said Jeffrey Albert, senior deputy prosecutor. "We're not dealing with nuclear physics here."
CASE OVER CAT LITTER
In some cases, defense attorneys and others wonder why prosecutors pursue the cases they do.
Consider the petty misdemeanor case against Ronald Silverman, a 38th-floor resident in the Discovery Bay condominium complex in Waikiki.
Prosecutors took Silverman to court over a charge of criminal littering, accusing him of dumping a small amount of cat litter outside his neighbor's front door.
The alleged incident was a flare-up in a long-running dispute between the two neighbors.
When the cat litter case went to trial in February, the prosecution had no witnesses who saw Silverman dump the litter. The prosecution also had none of the litter as evidence.
Three condo security guards who testified for the prosecution said they saw nothing unusual while patrolling the 38th-floor hallway on the day in question. A fourth testified he saw sandlike material on the floor, but the amount was so small that he had to stand right over it to see it.
The prosecution's strongest evidence, a security video showing Silverman dangling what appeared to be an empty litter box as he walked past his neighbor's door, was inconclusive.
The prosecution's case was so weak that District Judge Lono Lee granted the defense's motion for acquittal even before Silverman's attorney, Gary Dubin, put on a defense. That kind of motion is granted very infrequently in criminal cases.
Dubin criticized prosecutors for taking up valuable court time — more than a dozen hearings were held in all, sometimes involving multiple witnesses — for a minor dispute that he said more appropriately should have been resolved by the condo association.
"No sane prosecutor's office would have gone this far with this case," Dubin said. "Frankly, it showed a complete disrespect for the judicial system and a waste of tens of thousands of taxpayer dollars."
Prosecutors said they couldn't comment on the case because a related one is pending. They're taking Silverman's roommate to court over allegations he also dumped cat litter in front of the same neighbor's door. The roommate has denied the charge. A trial date has not been set.
Less than two months after Silverman's acquittal, he was on trial again. This time prosecutors alleged that Silverman attempted to steal his neighbor's newspaper — retail value: $1.75.
A judge found him not guilty at trial.
RELYING ON POLICE
Before prosecutors take any case to court, whether misdemeanor or felony, they must decide that two thresholds are met: There's enough evidence to show the defendant likely committed the offense, and the evidence is considered sufficient to prove the charge beyond a reasonable doubt.
If the evidence is insufficient, more investigating is done or the case is dropped.
Carlisle's office relies mostly on police to do investigations — a key difference from his predecessor and political rival, Keith Kaneshiro, who said his investigators plugged holes or pursued issues that arose after receiving cases from police.
In Carlisle's office, investigators are used largely to serve subpoenas and find witnesses. Albert, the senior deputy, estimated that prosecutors rely on what police give them in 99 of every 100 cases.
Carlisle said police are better equipped to do investigations. The key is for prosecutors to properly screen cases before accepting them so any holes can be filled by additional police work, he said.
"I'm not in this to play cops and robbers," Carlisle said.
But Kaneshiro said he suspects that prosecutors are losing some trials because they aren't sufficiently prepared, given the dearth of supplemental investigations.
Felony cases get the most scrutiny because they are the most serious crimes. Prosecutors must be satisfied that the evidence gathered by police meets the two legal thresholds.
To beef up screening, Carlisle established an office adjacent to the main police station so prosecutors can quickly evaluate records from new arrests to determine whether more investigation is needed. If the process works as it should, major flaws are resolved early on.
Over the past five years, Carlisle's office has accepted roughly 80 percent of the more than 13,000 felony cases referred by police. Cases generally are rejected because of insufficient evidence.
Once a case is accepted and goes to trial, if it isn't resolved sooner, anything can happen.
In May, deputy prosecutor Franklin Pacarro lost his first "death case" in the past 17 years with the office — he has prosecuted 43 of them — when a jury found a man not guilty of murder in the fatal stabbing of a shipmate.
It was the first time since 2003 that the state public defender's office, which represented the defendant, got an acquittal in a murder trial.
Pacarro said he didn't consider the case weak, but the jury believed the defendant's testimony over two others' that he acted in self-defense.
ACQUITTALS A RED FLAG
In the Bardi case, prosecutors charged the University of Hawai'i student in January 2002 even though there was no physical evidence linking him to the stabbing during a melee across from Hard Rock Cafe. Bardi's family and attorney said police and prosecutors initially ignored evidence that would have exonerated Bardi, then 18.
The case was based largely on the testimony of three men who alleged that Bardi stabbed the victim in the neck with a broken beer bottle. But William Harrison, Bardi's attorney, said all three were friends of the victim and had criminal records.
Despite Harrison's insistence that his client was innocent, authorities initially paid little heed to a woman who witnessed the stabbing, described the assailant and told police that Bardi wasn't him.
Authorities also didn't test the blood on Bardi's shirt — his nose was bloodied when he was jumped by a group of men — until several months later after Albert, the prosecutor who got the case midway through the process, requested the test. The blood didn't match the victim's.
By then, Albert had doubts about the evidence. The clincher was when Bardi took a police-administered polygraph test, and "he comes back clean as a whistle," Albert said.
In mid-December 2002, just weeks before the trial, the case was dropped — the first time in Albert's 17 years as a Honolulu prosecutor that he can recall the office completely dropping a case for such a serious charge.
Albert insists that the evidence initially was strong enough to take Bardi to trial.
But Harrison said his client's experience underscores that prosecutors sometimes rely on shaky evidence in a rush to charge people.
For his part, Bardi believes investigators were lazy and didn't follow up on leads that could have spared him 11 terrible months under a cloud of suspicion.
"Ultimately, that was a year lost out of my life," Bardi said.
Even if cases like the Bardi and cat-litter ones are not representative, experts agreed that the screening process, among other things, should be re-examined in light of the high acquittal rate.
"In and of itself, (the acquittal rate) doesn't make me think right off the bat something is wrong," said University of Arizona law professor Gabriel J. Chin, a former prosecutor. "But it's a high number, one that is eyebrow-raising.
"It does indicate something systemic."
Reach Rob Perez at rperez@honoluluadvertiser.com.
Correction: Before a case in May, the state public defender's office represented at least one other defendant who was acquitted at trial of a murder charge. That acquittal was in 2003. A previous version of this story reported other information based on information from the public defender's office.
