Whether or not Harvey Kansao will be charged with murder hinges on the decision of Superior Court Judge Arthur Barcinas who must decide if double jeopardy applies. But either way, the judge decides, the case could end up under the purview of the Supreme Court.
Judge Barcinas presided over two motions: a motion to dismiss and a motion to dismiss for double jeopardy.
The dilemma facing the court is whether or not double jeopardy is at play with the criminal felony charge of murder as Kansao entered a no-contest plea to simple assault as a misdemeanor at his arraignment hearing in the case.
The government argued that no plea was entered because Kansao did not verbally say “I’m guilty” or “no contest” at his arraignment and double jeopardy doesn’t apply.
But as the motion was heard, Judge Barcinas clarified that the government was aware of the victim’s passing before the arraignment hearing and questioned why the AG didn’t dismiss the misdemeanor case when Kansao was scheduled for arraignment on both the misdemeanor and felony charge on the same day.
Prosecutor Sean Brown told the court that the misdemeanor case was called first and that they didn’t want to dismiss the lesser charge in fear that Kansuo would be released without conditions and run.
But defense attorney Randall Cunliffe shares a different view, adamantly arguing that double jeopardy applies because the no-contest plea entered by the court is a conviction.
“All they have to do is object and the court won’t allow the plea. It won’t be entered. They say, we object your honor, the judge will say I am going to enter a not guilty plea. You guys are probably aware in federal court a guy has been trying to plead guilty for a long time and the court won’t accept his plea. You know, the judge doesn’t have to, so it’s just a scare tactic … cry wolf,” Cunliffe said.
Brown argued that Kansao entering a no-contest plea for the assault charge was a trick used by the defense to avoid felony prosecution. A notion that Cunliffe disagrees with
“I am allowed to do it so how is that a trick? I might have been smarter than they were seeing the opportunity for my client and you know they have the problem of not having dismissed the case sooner, not having spoken up, and saying, no, don’t let him plead no contest,” Cunliffe said.
While Judge Barcinas has taken the matter under advisement, Brown stressed that the AG is concerned that if the judge rules in favor of Kansao it would prompt other defendants to plead out to lesser included charges to avoid felony prosecution.
Brown added that the delay in the felony indictment was not a result of bad faith on the government’s part. However, he acknowledged that they could have done better. It was indicated that the court’s decision could prompt an appeal being filed with the Supreme Court.