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State v. Wong2/22/2002
irness to defendants in judicial proceedings. Where those fundamental interests are threatened, the "discretion" of the prosecutor must be subject to the power and responsibility of the court. State v. Braunsdorf, 98 Wis.2d 569, 297 N.W.2d 808, 817 (1980) (Day, J., dissenting). State v. Moriwake, 65 Haw. 47, 56, 647 P.2d 705, 712 (1982).
InState v. Alvey, 67 Haw. 49, 57-58, 678 P.2d 5, 10 (1984), this court noted that a judges' inherent power to dismiss an indictment is not generally so broad as to dismiss an indictment with prejudice before trial unless the State's misconduct represents a serious threat to the integrity of the judicial process or there is a clear denial of due process, a violation of some constitutional right, is an arbitrary action, or is the result of some other governmental misconduct. In Moriwake, supra, and in Alvey, supra, this court
. . . cautioned that a trial court's inherent power to dismiss an indictment is not a broad power and that trial courts must recognize and weigh the State's interest in prosecuting crime against fundamental fairness to the defendant . . . made clear that, even if "there are serious questions" about a material element of a crime, it is not within the trial court's discretion to usurp the function of the trier of fact before trial. State v. Lincoln, 72 Haw. 480, 825 P.2d 64, 70-71(1992). We are cognizant of the State's strong interest in prosecuting crime, but we are equally cognizant that the State's duty is to pursue justice, not convictions, and the prosecutor has a duty to act as a minister of justice to pursue prosecutions by fair means. We must weigh the State's interests against the defendants' rights to fundamental fairness, including an unbiased grand jury. In doing so, we cannot but conclude that the State's actions in these cases threatened the integrity of the judicial process and denied the defendants the process they were due. The State acted here in complete disregard of the attorney-client privilege and the rules of evidence. In doing so, the State deprived the defendants of a timely opportunity to raise the attorney-client privilege issue and to seek a preliminary judicial determination of it. In addition, the State improperly bolstered the testimony of a witness by wrongly presenting the testimony as privileged testimony within the crime fraud exception to the attorney client privilege, and prohibited a witness from presenting clearly exculpatory evidence. The State's actions cannot but have improperly influenced the grand jury and prevented it from operating with fairness and impartiality. The State's actions here, some of which were taken in contravention of the circuit court's clear instructions to seek preliminary judicial review, represent a serious threat to the integrity of the judicial process and merit dismissal with prejudice.
We take notice that these defendants have been charged with serious crimes several times. In each instance the indictments have been dismissed due to prosecutorial misconduct. In a dissent in United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735 (1992), United States Supreme Court Associate Justice John Paul Stevens discussed the dangers of misconduct by a United States Attorney. His discussion on the subject is applicable to misconduct by any prosecuting attorney:
Justice Sutherland's identification of the basic reason why [prosecutorial] . . . misconduct is intolerable merits repetition: "The [prosecutor]. . . is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win
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