The Grand Jury Trap, Diagnosed and Solved

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My stance is clear and firm: under no circumstance should bail that has already been lawfully set be revoked and summarily reset to "No Bail" solely upon a grand jury indictment hearing.

Let me tell you a secret: I talk to a majority of Honolulu’s top criminal defense attorneys on a regular basis, and an overwhelming majority of them agree that bail should never be revoked at the ex parte (one-sided, without defense counsel present) grand jury indictment stage of a case.

Here is why, broken down from several practical perspectives.

The Bail Underwriter’s Perspective: Protecting Families from Financial Traps

When I underwrite a large bail bond, part of my fiduciary duty to my clients is to look ahead. If a client is charged with a qualifying serious crime—basically attempted murder or murder—and faces an imminent grand jury proceeding, I have to warn them about the four statutory risk factors prosecutors use to push for preventative detention:

1. Flight Risk: A serious risk the defendant will flee or fail to appear.
2. Obstruction / Witness Tampering: A serious risk the defendant will intimidate a witness or juror.
3. Danger to the Community: A serious risk of danger to any person or the public.
4. Recidivism: A serious risk the defendant will engage in illegal activity while on release.

Let’s be honest: that fourth factor—recidivism—could easily be weaponized against virtually anyone caught in the criminal legal system, from petty misdemeanors up to high-grade felonies. If a court wants to find cause, an aggressive prosecutor can argue that anyone charged with an offense carries a risk of re-offending.

Because of how grand jury returns are being handled, I have to disclose a brutal reality to families: despite what the heart wants, there is a very real threat that they could pay a four-, five-, or six-figure non-refundable bail bond premium, only to have their recently released loved one arrested days later upon grand jury indictment.

As a human, I have never cared to make money off people’s tragedy. Extracting non-refundable fees from a family only to watch their loved one get remanded without bail days later is a predatory business model. That is why my solution is typically to counsel clients facing imminent indictments to pause, wait a few days, and gain clarity on whether the State intends to demand preventative detention.

What Top Criminal Defense Attorneys Agree On: Mere Allegations vs. Conviction

Top criminal defense attorneys are virtually unanimous on this point: early in a case, charges are mere preliminary allegations that only meet the baseline threshold for charging. They are light-years away from the standard of proof beyond a reasonable doubt required for a conviction.

Pretrial preventative detention without bail should be strictly reserved for the most severe, egregious acts supported by clear, obvious, and verified facts.

Consider a historical example: decades ago, in the mass shooting at the Xerox building, the evidence was overwhelming, the physical danger was undeniable, and holding the shooter without bail was an obvious, necessary call to protect the community.

Today, however, preventative detention requests are being applied to cases where the evidence is far murkier. We see cases where a shooter has yet to be definitively identified, or where a firearm has not even been confirmed as belonging to the accused, yet the State moves to revoke bail.

Under past Honolulu administrations—including the tenures of former City Prosecutors like Peter Carlisle and Keith Kaneshiro—there was a general understanding: for bail to be revoked or denied, it had to take place at a contested hearing where written motions were submitted, reviewed by the court, and statutory rebuttable presumptions could be properly answered by defense counsel.

The Secret Screening Room vs. The Contested Hearing

The fundamental conflict with resetting bail to "No Bail" at the grand jury stage is structural: the grand jury is a secret, one-sided proceeding by design.

• The Secret Phase: The grand jury panel meets in absolute secrecy without a judge in the room. Only the deputy prosecutor, the State's witnesses, the grand jurors, and the independent grand jury counsel are present. Defense counsel is barred from the room. The defense has no right to attend, no right to present rebuttal evidence, and no right to cross-examine a single witness.

• The Return in Open Court: Once three-fourths of the jurors (with no fewer than eight jurors) find basic probable cause, the indictment is returned in open court, and the judge routinely signs off on a bench warrant—often endorsing the State's requested "No Bail" hold without hearing a single word of defense counter-argument.

That is simply too much unchecked power for the government to wield over an individual's physical liberty.

Consider the double standard: I sit in courtrooms multiple times every week. When prosecutors ask for geographic stay-away restrictions or temporary restraining orders on the fly, judges routinely deny those requests on the spot. Why? Because the bench recognizes that restricting a citizen's basic movement requires written motions, service, and a scheduled, contested hearing where both sides can be heard.

Yet, when it comes to stripping away a citizen's constitutional right to bail entirely—the most severe deprivation of liberty possible before trial—an ex parteendorsement is treated as business as usual.

Just Because It’s Legal Doesn't Mean It’s Right

Another obvious but legal maneuver I routinely see at the Capitol happens when poorly written bills never make it out of committee, yet the exact objectives of those dead bills magically get inserted into another bill—or worse, sneaked in at the final hour of a budget bill to pass despite questionable review at best. Now, there are explicit rules against "gut and replace," yet every single legislative session we see a version of it play out. It stinks, and it shouldn't be allowed, even though legally it happens every year.

The exact same thing is true of engineering "No Bail" at the grand jury level. Because the right of the accused to release is so fundamental, it should never be legally maneuvered in such an underhanded way.

The grand jury was intended to act as an independent constitutional shield between the power of the government and the citizen. It was created to limit government overreach in the charging process and have members of the community review evidence to decide if there is enough evidence to charge. It was never designed to bypass procedural due process on bail.

Legally, top criminal defense attorneys tell me emphatically that a "hearing" isn't satisfied by the dynamics of a grand jury setting, since no defense counsel is present. Technically, the grand jury setting meets the broad definition of a "hearing"; however, because it is uncontested—meaning there is no defense counsel present to respond—it is not a fully definitional, true hearing. It is more specifically an ex parte proceeding, which is not considered a true, definitive evidentiary hearing for the purpose of a final, permanent bail denial.

Stripping a defendant of counsel and denying them the opportunity to contest allegations, cross-examine accusers, and present less-restrictive release alternatives crosses two bright red lines. Turning a constitutional shield into an offensive weapon to jail people without a contested hearing betrays the foundational intent of our laws.

Practical Solutions: Navigating the Grand Jury Trap

If you or a loved one are facing charges for a qualifying serious crime—basically attempted murder or murder—you must exercise extreme caution before writing a check or signing a bail agreement.

Unless there are extenuating and urgent circumstances, the wisest move is often to wait until after the grand jury indictment is returned to confirm bail status before paying a non-refundable bond premium:

From years in the gallery watching hundreds of arraignments before Judge Ronald Johnson, his courtroom temperament reveals an open, deliberate rationale rooted in his federal prosecutorial background: he defaults to public safety early in a case, using his discretion to confirm a "No Bail" status on serious charges as a temporary, non-permanent hold. 

Knowing he cannot conduct the necessary deep dive during a crowded arraignment calendar, Judge Johnson defers that ultimate determination to the assigned trial judge. It is at that subsequent, contested hearing weeks later—where the defense is fully present—that the trial court can carefully evaluate evidence and craft tailored release conditions like electronic monitoring, curfew, or release to a treatment program. 

While I still protest the immediate emotional and financial devastation of non-refundable bail premiums being lost at grand jury, Judge Johnson's approach is understandable through the lens of public safety: maintain a secure hold at the starting line, and let the trial judge serve as the true arbiter of release.

Pretrial liberty is the constitutional baseline. Until our courtrooms consistently demand that no citizen sits behind bars without bail absent a full, contested evidentiary hearing, local families must protect both their wallets and their defense from the grand jury trap.

Fighting for you,

-Jail Mail Nick