Friday, December 19, 2014

How Should We Remember Pearl Harbor?

            On December 7, 1941 at 7:48 a.m., the first wave of Japanese fighter planes attacked Oahu. More than 350 fighter planes would descend upon the island. The Japanese managed to destroy and damage battleships, cruisers, and hundreds of planes. A total of 2,403 people were killed—68 were civilians—in 90 minutes. The Pearl Harbor naval base wasn’t the only attack sight. Bombs dropped all over Honolulu.
            When we look back on it, most note that daring raid by the Japanese as the start of America’s entry into World War Two. The phrase, “remember Pearl Harbor” became a clarion call in the United States. It was a rallying cry to mobilize American forces into a global conflict fought in two theaters on the opposite ends of the globe. We still remember Pearl Harbor with ceremonies, memorials, and speeches.
But many have forgotten that December 7, 1941 marks the start of one of the longest violations in history. Hawaii had been a U.S. territory and instead of a state constitution, the operative document was the Organic Act—an act of Congress that established and set up the territorial government of Hawaii.
Buried deep in the Act was a provision allowing the governor to suspend habeas corpus and declare martial law “in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it.”
The governor in 1941 was Joseph Poindexter. Hours after the attack at 3:30 p.m., Poindexter sat at his office at Iolani Palace surrounded by military brass. No one knew if the Japanese would come back. The death toll was unknown.
One of the officers in the governor’s office later wrote that Poindexter quietly walked onto a veranda and looked over onto the palace grounds. He saw two gaping craters in the lawn and wondered aloud if they were there the day before the attack. No one had an answer.
He turned to the officers and said he believed martial law was the only viable way to preserve order and keep people safe. The tone of the former federal judge, according to the officer, “was as if he were adjudging a death sentence.” After declaring martial law, the military took over the territory and wouldn’t let go.
The courts were suspended and replaced with military tribunals. The governor abdicated to a military governor whose orders were the law.
The military regulated nearly every aspect of life in the islands. It imposed a curfew and ordered a blackout to prevent night-time attacks. Civilians were ordered to turn off lights and blackout the headlights on their vehicles. Barbed wire was set up across beaches and checkpoints were a common sight in Honolulu.
The military closed public schools and Japanese language schools. Everyone over the age of six was required to be registered and fingerprinted. Money, labor, food, traffic enforcement, and even prostitution came under the aegis of military concern and regulation.
Civilian courts were suspended and replaced with a military tribunal. The tribunal presided over civilian and military violators of orders and proclamations.
Hawaii’s Japanese community became a target of exclusion and suspicion. They were closely monitored. Japanese language schools and Buddhist temples and a few Japanese Christian churches were shut down. Up to 1,400 people of Japanese descent were rounded up and held in internment camps scattered throughout the islands—including a camp in Haiku here on Maui.
This was the status quo for the territory. Hawaii had become a military dictatorship. Martial law lasted long after the threat of invasion had passed. Years after the attack on Oahu, two civilians challenged the validity of these courts during the occupation. The military authorities sentenced them to prison for violating either civilian law or an order of the military governor.
They managed to get their case to the United States Supreme Court and the court agreed that the martial law by that point was unlawful. The term “martial law” was supposed to “authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion.” It was not supposed to supplant civil courts.

But the final word on the legality of martial law in Hawaii didn’t come down until 1946—after the war and long after the barb wire was removed from the sands of Waikiki.

Friday, December 5, 2014

The Grand Jury and the Two Darrens

            The grand jury has got a lot of press lately. Two stories have highlighted this very old procedure in our criminal justice system. The first is the national news story about Missouri police officer Darren Wilson.
Officer Wilson shot an unarmed black teenager to death. The death sparked protests and a clampdown by the police that made national news. Pressure mounted to the point where the prosecutor appeared before a grand jury and presented evidence against Wilson. The jury heard hours of testimony and met for several days. It even heard the testimony of Wilson himself.
When the grand jury did not indict the officer protests erupted in more than 150 cities. The town of Ferguson was again set ablaze and the National Guard and the police have clashed in its streets all over again.
            So what exactly is the grand jury? Why do we even have it?
            We inherited the grand jury from England. Back in in 1166, King Henry II issued an order requiring twelve “good and lawful” men from the community to come together and determine if any person in their villages or towns had committed the offense of robbery, murder, theft, arson, or other serious crimes. If they agreed, they would inform the King’s officials and a charge would be brought. From there, the accused would probably stand trial of some kind and would most likely be subject to a terrible demise like hanging or decapitation.
Apparently we live in more enlightened times and the government does not cut people’s heads off anymore. But we still use the grand jury. It became part of English legal landscape and later the colonies. Our founders felt it was important enough to guarantee it in the Bill of Rights.
            Our state constitution has a grand jury guarantee too. Sixteen men and women in the community are empanelled at the start of each year and hear cases presented by the prosecutor’s office. They hear testimony of witnesses, police officers, and whoever the prosecutor wants to present. And then they deliberate in secret to determine if charges should be brought. It happens in every county in the State.
            So much for the history lesson. What’s it do? The grand jury hears evidence presented by the prosecution and determine if there’s probable cause that a crime occurred. The standard is less demanding than proof beyond a reasonable doubt—the level of evidence needed to convict. If the grand jury finds probable cause, it may return an indictment. If not, it will return a no-bill.
The other thing about the grand jury is that it’s all done in secret. The accused does not have the right to attend and certainly is not compelled to testify. The prosecutor almost never presents defenses before the grand jury. That’s what made the grand jury in Missouri so different. Wilson testified and the prosecution presented possible defenses to the shooting. Hence the nationwide disappointment and anger.
            Nor is the grand jury needed for every charge. A grand jury presentation is only required for serious crimes. The US constitution requires it only for “infamous crimes.” Courts over the years have ruled that certain crimes—like murder or sexual assault in the first degree—require an indictment.
            Others don’t. Driving under the influence is not so serious that a prosecutor has to present evidence to a grand jury. Neither is abuse of a family or household member, which is why the other case in the news is so curious.
The other grand jury story is a local one; and it involves another cop named Darren. This Darren—Honolulu Police Department officer Darren Cachola—was caught on camera attacking his girlfriend in a restaurant. The attack looked pretty savage and intense. It was so bad that others intervened.
            The Honolulu prosecutor’s office did not file a complaint alleging the misdemeanor offense of abuse of a family or household member. Instead, it opted to present the case to the grand jury. The grand jury in Honolulu, as with the grand jury in Missouri, returned a no bill. And people were scratching their heads or outraged at the lack of a prosecution.
Perhaps the grand jury system worked in these cases and we’re just not used to it. The grand jury is really supposed to protect the accused from unwarranted or overzealous prosecutions. I guess everyone else from Honolulu to Ferguson felt that these prosecutions were warranted.

            But often times it’s been criticized as a rubber stamp for the government and is known for indicting anyone for about anything. New York Court of Appeals Chief Judge Sol Wachtler famously said that if the prosecutor wanted to, a grand jury could “indict a ham sandwich.” Ironically, the chief was later indicted himself. But that’s another story for another time.