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Pinkerton walks over Rule 48
by Amanda C. Gregg - THE GARDEN ISLAND
A man who is perhaps best known as a gadfly among county officials won his case yesterday, because prosecutors failed to file paperwork on time.
Krs (sic) Pinkerton, an outspoken resident with a Web site and blogs that critique the police department, prosecutors office and the county’s legal processes, was declared a free man yesterday.
Circuit Court Judge Kathleen Watanabe found Pinkerton had been denied his right under Rule 48 to have a trial within six months.
Because of that, all charges, which include harassment, assault on two police officers, DUI, criminal property damage, open container violation, and resisting arrest, have been dropped.
Had the case proceeded to trial and had Pinkerton been convicted, he could have been sentenced to up to 11 years in prison and up to five years probation, according to Hawai‘i statutes.
A district court case against Pinkerton was also dropped in August by District Court Judge Trudy Senda based on the same infraction.
Dan Hempey, Pinkerton’s attorney, said in court that his client had suffered more than a violation of Rule 48 but had also been denied several civil rights.
According to court documents, a letter from the Prosecuting Attorney’s Office dated May 23, 2006 offered Pinkerton two days to accept a plea deal in which the case would be dismissed without prejudice.
The deal was based on several conditions, including his waiving of the right to Rule 48, forfeiting civil claims against the county, taking down his Web site, writing letters of apology to the police officers in question and moving away from Kaua‘i within 60 days.
“This case started with an arrest, then went to (Pinkerton’s previous attorney), then to a plea offer to dismiss the case entirely if he would take down his Web site and move,” Hempey said.
“He says ‘No’ and wants his right to a trial, and he gets indicted again — and the state makes the mistake of thinking the indictment clock starts over. But it doesn’t,” Hempey said.
Though both the prosecution and defense agreed 148 days of the 180-day limit had been clocked when tallying Rule 48, 35 remaining days remained for Watanabe to divvy out.
At the crux of the issue was the timeline of a motion filed by Deputy Prosecuting Attorney Marc Guyot and granted by Watanabe Nov. 20, 2006, requesting a mental and penal responsibility examination of Pinkerton.
Watanabe had granted the motion with a two-week deadline.
Court records show the order was filed Dec. 14, meaning prosecutors didn’t meet that deadline, Hempey said. Even if they had, he argued, only half of the order had been set in motion.
That’s because prosecutors had “unilaterally told (the doctor) to only do the mental portion of the examination and not do the penal responsibility section,” Hempey said, deducing that a delay of Rule 48 happened “because of prosecutorial usurpation of the court’s authority.”
But prosecutors maintained their office had filed the order prior to Dec. 14, despite the absence of a record.
Though there weren’t minutes or court records to that effect, First Deputy Prosecutor Christopher Bridges said Guyot had written a note in his file stating he had processed the order before Dec. 14 and that it had been rejected and he was forced to resubmit it on the latter date.
But Hempey said a note written in a prosecutor’s file shouldn’t be considered an official record.
“I don’t want to be glib,” Hempey said. “But I don’t think a note from Mr. Guyot in the file relayed to the court by Mr. Bridges satisfies their burden of proof. This is the problem with recharging a guy in the middle of the time clock.”
Watanabe said after investigating on her end, the order had been expeditiously executed.
“This court takes great pride in moving orders out of its chambers,” Watanabe said. “If this court were responsible for what basically attributed to the delay of Mr. Pinkerton I’d be the first to admit it,” she said. “In a matter of 24 hours the order was turned around by this court.”
With all those factors in mind, Watanabe said Pinkerton’s case had used up 198 days, precluding him from being within the allotted amount of time to proceed to trial.
“Given the circumstances which contributed to the delay by the prosecutor’s office — the delay in submitting the order for court but moreso the delays caused by an interference of a court order — the court’s granting the dismissal with prejudice.”
Krs (sic) Pinkerton, an outspoken resident with a Web site and blogs that critique the police department, prosecutors office and the county’s legal processes, was declared a free man yesterday.
Circuit Court Judge Kathleen Watanabe found Pinkerton had been denied his right under Rule 48 to have a trial within six months.
Because of that, all charges, which include harassment, assault on two police officers, DUI, criminal property damage, open container violation, and resisting arrest, have been dropped.
Had the case proceeded to trial and had Pinkerton been convicted, he could have been sentenced to up to 11 years in prison and up to five years probation, according to Hawai‘i statutes.
A district court case against Pinkerton was also dropped in August by District Court Judge Trudy Senda based on the same infraction.
Dan Hempey, Pinkerton’s attorney, said in court that his client had suffered more than a violation of Rule 48 but had also been denied several civil rights.
According to court documents, a letter from the Prosecuting Attorney’s Office dated May 23, 2006 offered Pinkerton two days to accept a plea deal in which the case would be dismissed without prejudice.
The deal was based on several conditions, including his waiving of the right to Rule 48, forfeiting civil claims against the county, taking down his Web site, writing letters of apology to the police officers in question and moving away from Kaua‘i within 60 days.
“This case started with an arrest, then went to (Pinkerton’s previous attorney), then to a plea offer to dismiss the case entirely if he would take down his Web site and move,” Hempey said.
“He says ‘No’ and wants his right to a trial, and he gets indicted again — and the state makes the mistake of thinking the indictment clock starts over. But it doesn’t,” Hempey said.
Though both the prosecution and defense agreed 148 days of the 180-day limit had been clocked when tallying Rule 48, 35 remaining days remained for Watanabe to divvy out.
At the crux of the issue was the timeline of a motion filed by Deputy Prosecuting Attorney Marc Guyot and granted by Watanabe Nov. 20, 2006, requesting a mental and penal responsibility examination of Pinkerton.
Watanabe had granted the motion with a two-week deadline.
Court records show the order was filed Dec. 14, meaning prosecutors didn’t meet that deadline, Hempey said. Even if they had, he argued, only half of the order had been set in motion.
That’s because prosecutors had “unilaterally told (the doctor) to only do the mental portion of the examination and not do the penal responsibility section,” Hempey said, deducing that a delay of Rule 48 happened “because of prosecutorial usurpation of the court’s authority.”
But prosecutors maintained their office had filed the order prior to Dec. 14, despite the absence of a record.
Though there weren’t minutes or court records to that effect, First Deputy Prosecutor Christopher Bridges said Guyot had written a note in his file stating he had processed the order before Dec. 14 and that it had been rejected and he was forced to resubmit it on the latter date.
But Hempey said a note written in a prosecutor’s file shouldn’t be considered an official record.
“I don’t want to be glib,” Hempey said. “But I don’t think a note from Mr. Guyot in the file relayed to the court by Mr. Bridges satisfies their burden of proof. This is the problem with recharging a guy in the middle of the time clock.”
Watanabe said after investigating on her end, the order had been expeditiously executed.
“This court takes great pride in moving orders out of its chambers,” Watanabe said. “If this court were responsible for what basically attributed to the delay of Mr. Pinkerton I’d be the first to admit it,” she said. “In a matter of 24 hours the order was turned around by this court.”
With all those factors in mind, Watanabe said Pinkerton’s case had used up 198 days, precluding him from being within the allotted amount of time to proceed to trial.
“Given the circumstances which contributed to the delay by the prosecutor’s office — the delay in submitting the order for court but moreso the delays caused by an interference of a court order — the court’s granting the dismissal with prejudice.”
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puput wrote on Apr 3, 2009 10:19 AM: