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Attorneys Thomas Otake, Victor Bakke , Jason Burks, and Prosecutor Van Marter - Motion to Dismiss Mega Special

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Novel Motion to Dismiss Murder Charge to be heard next Tuesday in District Court

Attorney Thomas Otake made a bold move filing a Motion to Dismiss Murder Charges against his client, one of three police officers charged with the murder of 16-year-old Micronesian teenager Iremember Sykap.

In the motion, he argues the charge of second-degree murder should be dismissed with prejudice because prosecuting them by way of a complaint and preliminary hearing after an Oahu grand jury declined to return a true bill is "statutorily and constitutionally impermissible."

Agreeing with the argument made by Mr. Otake, State Sen. Karl Rhoads, chair of the Judiciary committee added:

“Class A felonies, because of the length of time that you can spend in jail, and murders and the real heavy duty crimes, still require a grand jury indictment.”

In addition Sen Rhoads said:

"the consequences are too steep for a person convicted of a class A felony to be charged by complaint only. It’s better to have someone, in addition to the prosecutor, looking at whether charging somebody in that circumstance is the right thing to do."

Subsequently, Deputy Prosecutor Christopher Van Marter filed a "memorandum in opposition" thoroughly disagreeing with Mr. Otake's motion.

Deputy Prosecutor Van Marter stated the District Court does in fact have the authority to charge murder cases based on:

1) Article 1 section 10 of the Hawaii Constitution

"Article I section 10 of the Hawaii Constitution provides, in relevant part, “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law or upon information in writing signed by a legal prosecuting officer under conditions and in accordance with procedures that the legislature may provide.”

2) the Hawaii Supreme Court

Which recognized that the Hawaii Constitution authorizes the prosecution of a defendant via district court felony complaint in State v. Jess 117 Hawaii, 381, 397, 184 P. 3d 133, 150 (2008).

3) HRS Chapter 805 entitled “Criminal Procedure: District Courts”

Section 805-7 provides, in relevant part, that “[I]n all cases of arrest for offenses that must be tried in the first instance before a jury . . . the judge in whose jurisdiction or on whose warrant the accused was arrested, upon the appearance of the accused, shall proceed to consider whether there is probable cause to believe that the accused [committed] the offense with which the accused is charged”.

Attorney Jason Burks opined by stating:

"I have observed at least a few class A felonies, including murder cases, charged via preliminary hearing in the district court as part of the judiciary’s pandemic changes when Grand Juries were unable to convene and hear cases. Preliminary hearings are also held for cases that need to be charged the first couple weeks of January when new grand juries are being empaneled.”

This week on the A-1 Podcast with A-1 Nick, top criminal defense attorney, and former prosecutor, Victor Bakke offered a deep deconstruction of the legal language used in Mr. Otake's motion.

Mr. Bakke described the statutory limitations of charging class A felonies via Information, and decoded the legalize in the Hawaii Revised Statutes and Hawaii Constitution, to demonstrate how the de facto conclusion, is that the District Court may not in fact have the authority to charge murder cases.

In his nuanced dissertation of the law, Mr. Bakke points out that whether the charge is allowed or not allowed in the District Court, there are secondary consequences, chiefly TWO takeaways, to recognize:

1) Mr. Otake's Motion to Dismiss, even if unsuccessful, could later be utilized as an "appellate bomb" to appeal the eventual conclusion of a guilty verdict.


2) The prosecutor's office is still authorized to re-present the case to the Grand Jury if unsuccessful in District Court. Double Jeopardy does not apply to the Grand Jury; the case can be presented to multiple panels, again and again.

The A-1 Podcast featuring attorney Victor Bakke can be experienced via:


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