HONOLULU (KHON2) — Keeping suspected violent offenders behind bars while charges are worked out could get harder due to a case that has major implications for defendants and law enforcement.

The Hawai’i Supreme Court is expected to weigh in as soon as next week on whether judges can keep defendants in jail for as many as 90 days while grand jury indictments are sought. This rule has been relied upon after a previous opinion that caused a grand-jury indictment scramble; meanwhile, state statutes requires charging within 48 hours to keep someone held.

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“The apparent conflict between the statute and the court rule, the supreme court is going to have to unravel,” explained Steven Levinson, a retired Hawai’i Supreme Court associate justice.

The state public defender’s office filed a petition earlier this month on behalf of Scott DeAngelo who was arrested after a dead body was found in a Pearl City apartment fire in February.

Charges against DeAngelo were dropped in the wake of the Hawai’i Supreme Court ruling known as “Obrero” which required grand jury indictments in dozens of high-profile felony cases.

Judges let prosecutors keep some defendants like DeAngelo behind bars without bail awaiting indictment under a rule called 12g.

DeAngelo was recently re-charged, but the public defender is calling on Hawaii’s highest court to end the 90-day-hold practice, saying “Keeping a person in jail without bail after the case has been dismissed violates that person’s constitutional and statutory rights.”

“The [12g] rule of court says that if the court does dismiss a criminal action based on some defect in the instituting of the matter… the court may order the defendant to be held in custody, or for the defendant’s bail to be considered for a specified time, pending the filing of a new charge,” Levinson explained.

Levinson added, “that rule was last amended when I was on the court, and I don’t recall us thinking about this problem. And, so it’ll be interesting to see what the supreme court ultimately does.”

In its opposition filed today, Honolulu Prosecutor Steve Alm said, “Not every case will be able to be presented to a grand jury in a short amount of time. Cases dismissed on Obrero grounds are not the only cases vying for the availability of grand jury dates.”

Alm’s spokesperson declined further comment, but Jon Ikenaga with the public defender’s office told Always Investigating: “The prosecutors’ answer to our writ fails to explain why it is constitutional for a court to incarcerate an unconvicted, uncharged defendant for an extended period of time due to an error by the prosecutor’s office in charging.”

“The prosecutor’s response failed to take responsibility for the fact that the reason the complaints in the cases are being dismissed is because the prosecutor’s office failed to follow statutory requirements in charging. It is unfortunate that the prosecutor’s office is blaming the Public Defender’s office and the Supreme Court for its own errors in charging,” said Ikenaga.

Law enforcement and prosecutors have had a challenging year, starting with a Hawai’i Supreme Court opinion called “Jardine” that said charges are defective if prosecutors don’t provide the statutory definition of “substantial bodily injury” in the charging document.

Then there was the Obrero ruling, and now what’s likely to be known as the DeAngelo ruling — if the court opines — could add another layer of complexity.

“The lament that ‘woe is us, public safety is at risk’ is just tough,” Levinson said. “There are rules that have to be played by. And, so what’s at issue here is what exactly the rules are when you have a statute that seems to go to the left and a rule that seems to go to the right.”

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Always Investigating will follow up on what the Hawai’i Supreme Court decides to do next and how that impacts cases and defendants in limbo.