 Yeah, welcome back to Think Tech. I'm Jerry Fardiel. This is Community Matters and we have a visit from Tricia Nakamatsu. She's a deputy prosecuting attorney in the City and County of Honolulu. We are delighted to have her on the show. Hi, Tricia. Hi, Jay. Thanks so much for having me. Can I call you Tricia instead of a deputy prosecuting attorney? Please. Okay. Appropriate formality here. So, you know, this is a new administration under Steve Mom. Can you talk about what it's like to be a deputy prosecuting attorney right now? You know, for a lot of the line, line deputies, things haven't changed too much. We do our job day to day. A lot of the assignments are the same as they've been for from the prior administration. But there is a definitely reorganization going on. Prosecutor Om has a vision for his priorities, his policies, and the way he sees things that could actually make us more efficient, more accountable, more transparent. So things are in flux. We're in a little bit of transition right now, but it's a good time. Yeah, no pressure, but you know, people really judge the quality of justice by how things go in the criminal, you know, in the criminal section of the courts, so to speak, just like they judge how things are going on policing by every single officer they meet, especially the ones they meet after they've been going a little too fast on the highway, those guys. And you know, whatever happens leaves a long shadow on how people feel about the justice system. So you're part of that. No pressure. No pressure. Right. So, you know, like every other agency, like every other company in Hawaii, the prosecutor's office has to watch what happens in the legislature. They want to watch and see what bills are introduced. They want to see what bills are, you know, good and maybe not so good. And sometimes they want to actually speak to the legislators about that. And no exception, the prosecuting attorney's office for the city and county. And I think, you know, it's very interesting and my own view is I really wonder whether we need to do that because it's like an industry. I always thought the legislature was like, you know, Hawaii's really biggest industry, you know, we don't have sugar and pineapple anymore, but we do have the legislature. It's kind of a hidden industry, if you think about it, because when I was starting off as a lawyer, it never occurred to me that there were so many people involved in this process. So have you walked the halls? Oh, yes. Yes. Normally, non-COVID times, that's the bulk of my job is just going and talking to the legislators, talking to all the stakeholders, agencies and making sure that we can kind of do our part to help the legislators get the best possible. Yeah. Well, you know, I'd like to ask you a sort of general kind of a philosophical question. You know, isn't the law, the criminal law, such as it is fine, just fine? We've been, you know, we have the criminal law, the legislature passed these criminal statutes a long time ago, procedures well settled in rules of civil or rather criminal procedure and so forth. Why do we need to worry about new legislation? Why does anybody need to worry about new legislation in the criminal in the criminal section of the of the legislature? Well, no doubt when the penal code was passed, those back in the 70s, I believe, it was a comprehensive package. There was laws about seemingly almost everything and anything, but like anything, human nature is subject to adapt and evolve and the wording is never quite perfect on every single statute or every single rule. So every year there never fails to be new statutes created, more ideas on how things can be better. Yeah, unfortunately, a lot more criminal offenses as well, too. Yeah, that means to me that's a mark of democracy. I asked a question in a provocative way, but it's a mark of democracy. I mean, for example, the Constitution, the United States Constitution itself, I mean, the 18th century was nice, but things have changed. And things are changing more quickly now. And our society is changing. And we have to change the laws to keep up with the society. Otherwise, otherwise, the public, and this is the big point, the public loses confidence in the system. And you want the public to be confident of the system. You want the public to feel that whatever happens, it's fair. And that's why you've got to do what you got to do. And a lot of the bills that prosecutor included in our legislative package this year are those types of bills that really are helping us move into the catching up with the 21st century here. Okay, let's let's catch up. Let's let's take a look. I want to go through the have a list from you if it looks like about 10 bills or so. Some of them are to observe and some of them are to care about a lot to the prosecutor. Let's go through them and I'll name them and we can show a very brief sort of shorthand statement of what they might might involve. So the first one to discuss Trisha is HB177. What is that about? So House Bill 177 was part of our legislative package and that basically would change it changes the state of mind necessary to prove that somebody knew the victim of sexual assault or their victim of sexual assault was mentally defective. Now that's one of those terms that to our ears nowadays sounds a little archaic or harsh, mentally defective, but it is an actual defined term in the penal code. So we didn't make that up. We didn't use the term. We were working with what was was in there and the state of mind would basically be negligent now because like you should have known better or you should have realized that this person was of such a condition because people who are mentally defective are really vulnerable class by definition. They don't understand the nature of their acts. So if somebody it seems like maybe they're going along with something or maybe things are not they're not fighting as as hard as one might expect a lot of that has to do with the nature of their condition. So we felt that that really yeah deserves a higher level of protection like miners. Okay. Okay. The other thing I wanted to ask you about that is there are people who are elderly and they're equally vulnerable or they're they're vulnerable to a certain degree simply by physical frailty. What have you and is there anything in the in the any parallel issue or statute in the in the criminal law that makes it special when you attack or that you knew or should have known for example that a person is frail because he or she is is elderly. Yeah. Well, there is heightened sentencing provisions. So if somebody is convicted of certain types of crimes and their victim is either very young under the age of seven I believe or if they're elderly then they would be subject to mandatory minimums um heightened penalties. And all of those are out there to protect these more vulnerable classes and in theory people would be offenders would know that you're going to face a much different penalty if you even try to harm these folks. We have we have hate crimes here knowing. We do as well yeah hate crimes are primarily is more hence towards like nationality religion things like that if it can be proven that that was the basis for the crime. Yeah. On the mainland you know there's plenty of that even yesterday which is really sad that people do that brutal crimes against elderly people, Asian people, it's incredible that they do that. Anyway, it's not going to happen here because we're going to prosecute them good. There's a number of other bills there was a Kapuna caucus bill that also passed this year with heightened penalties. So all of the crimes committed against Kapuna are elderly will also face hard pressure penalties. And I believe they decrease the age across the board well made it uniform to 60 years of age or older is now considered that was really for purposes of those bills. These kinds of bills come from the prosecutor's office right I mean you guys want to tune it up. You know what defenses people put out. You know what you know what what comes up in the courtroom so to speak. And you don't want any any unfair situation where a person was victimized and it's hard to get across a conviction. Absolutely and that's what we base our package on the Kapuna caucus bill was I believe from Maui prosecutors but we work with them as well and our elder abuse team monitored and specified on those bills too. So we all all the different counties kind of keep tabs on each other's bills we support each other give each other feedback and it works out really well because these are going to be statewide laws. Right right important to know that you guys collaborate I really like that and also that these are state everything you do is statewide. That means in terms of the criminal code the criminal law. Okay let's go to HB 181 and this is about the definition of property. Can you talk about it? Yes this is one of those updating bringing our laws up to real life standard and it's basically updates the definition of property to include anything in electric electronic medium as you see but that basically means data anything that can be retrievable in written format but is stored electronically. Say somebody steals a thumb drive but the knowledge or the data that's on that thumb drive could be worth thousands hundreds of thousands of dollars a thumb drive five dollars ten dollars so there's a disconnect there especially if we can prove that there was an intent or knowledge to take what was on the thumb drive and not just that little device. We actually have had to turn down cases or severely downgrade cases for that very reason which is why we felt this is important to modernize our definitions in this way. That's one of those things that's changed that is changing in our society all the things around computers and of course there's this hacking and you know stealing data there's you know all the terrible things you can do to somebody ruin his life identity theft what have you and strikes me that we need to have a lot of prosecutions and we have to make sure that the criminal code provides for appropriate punishments on these things because we really have to stamp it out. It's not too much we can do to somebody who is you know doing this from a far away place you know Eastern Europe for example we would have trouble stopping him or her but if it's local wow we want to we want to make sure that doesn't happen locally for sure for sure. Okay well that's that's good that's in the right direction so far I really like these bills. Did these two pass? Yes these were both passed all the way through session and transmitted to the governor so they're on his desk waiting for signature. Okay governor you should sign these bills I'm just you know because I know he watches us all the time. Okay Senate Bill 412 now this one you introduced in the Senate and at the House and this is about implied consent and you use the word Trump here I find that an interesting word can you can you describe this. Can you describe this bill Trisha? That was just my short hand for this bill um what happens it well that portion of the bill basically clarified that the implied consent law in Hawaii says that everybody who drives the car gets their driver's license and is driving on the road gives their income consent implied consent to be to give a breath of blood alcohol test if they're pulled over or driving under the influence. Now the thing is technically you can withdraw that consent and you can just say I'm not going to if you get pulled over you're under arrest for DUI I'm not going to take the test you can refuse so that was starting to become a problem because of some of the case law that's been developing over the years but what was we found is that search warrants could actually be used for as them to obtain that evidence because that is in fact what the breath and blood alcohol measurements are their evidence for a DUI case so there was some confusion on Maui about one of the courts whether a search warrant could actually be used if someone has said I don't give my I withdraw my consent but the conclusion that most people have reached we felt with clear cut and just perhaps needed this extra statutory clarification was that implied consent law does not want to quote Trump the ability for courts to issue search warrants that if a court finds by probable cause that a search warrant is necessary to obtain this information that it could disappear if it's not gotten right away then a search warrant could be granted and that's one of the main changes here in this law yeah oh yeah I'm sorry there was another part of this bill though this is senate bill 412 and this was that a habitual DUI's could not be deferred and that's just one of those things deferral is our criminal law is basically like a rather than entering their plea right now a defendant can wait a certain period of time and say I'm going to take my deferral deferred acceptance of a guilty or no contest plea and they are basically telling the court that this was a one time thing I will learn my lesson I will be a good boy or good girl and not do anything wrong again I've learned my lesson what will happen is then if they wait if they're able to follow the rules not get arrested or convicted for any other crimes and they meet whatever conditions the court puts on them maybe attending drug or alcohol treatment getting drug tested alcohol tested mental health counseling whatever it is that the court feels they need to be able to prove that they really have learned from this um after that that period is over then the case will be dismissed almost like it never happens um but we just felt that habitual OVI or DUI's in particular are so serious and notably first and second offense DUI's cannot be deferred so we didn't see there was any reason that someone now on their third offense habitual OVI should be allowed to defer their their plea oh really it's different situation it's like dealing with a kid if it keeps on breaking the rules you you have to make it more clear than you did before so the question when is this information lived and who presented to the court and when is it presented is it presented on issues of guilt or innocence or presented on you know sentencing the prior offense yes oh yes um so that the court keeps all that information they have records on convictions and charges um I believe uh speeches uh criminal justice information uh is maintained by the HEs and they have an entire unit dedicated to maintaining that information as well okay so the judge himself or herself can can go look it up from from the computer the state computer system yes and no I mean we still have to prove it you have to present in court yeah yeah it could be a mistake and so you want to you want to have a little a moment of due process on that always you press okay um by the way I want I want to add one thing some of these are hb house bills some of the senate bills so I take it that when you introduce the bill when the prosecutor introduces the bill it's in both both places their companions all the time and they they go from both directions yeah that's customary okay let's go to the next one this is senate bill 413 um this is about privacy it's a very interesting topic these days can you talk about this one 413 yes definitely violation of privacy so this is similar to the last bill that we talked about in so much as it would prevent people from getting a deferral on these particular violation of privacy cases um violation of privacy is kind of a an amorphous term for most people but under our laws this is not the ones that we're talking about are not like a keeping tom or that type of low-level offenses these are people who are setting up devices camera video equipment um to watch people in a state of undress or to record it to broadcast it um either undressing or engaged in sexual activity in a situation where there is a serious expectation of privacy um this is not something they don't have knowledge or consent of being watched or recorded certainly um and so we also didn't feel that those people should be entitled to deferral to be able to ever wipe this from their um criminal history to the extent that they could say it's like it never happened um the victims of these crimes and I'm sorry another part of that offense is that it could also include threats to disclose those images so revenge porn um things like that once these things are out there on the internet they they're never going away um the victims of these types of crimes have to live with it forever they have to live with it knowing that it could pop up somewhere someday in multiple places and so even more so we didn't felt we didn't feel that the offenders should be able to forget about it um as soon as they're one year five years or however long of yeah that's really sounds like a good change a good good improvement on that again it's uh we live in a time where computers and technology like that call it eavesdropping technology is readily available and there are people who do that I'm sure I am sure Tresha you tell me if I'm wrong I am sure that you have cases about peeping toms and the violations of privacy right and these really are so much more than that because like it is um like I mentioned is these are people who are actually sitting up camera equipment video equipment to watch people in undressing getting naked and sexual activity things that should never you know there was never in any um desire for that to be made public right creepy comes to mind the word creepy but I don't think creepy is in the statutes say the least right ultimate ultimate creepy well threatening people you know to release the information it's much more than creepy okay let's go to the next one um this is uh about guardian guardian and litems or guardian guardians and light up is proper I suppose uh hb 345 what's that one do oh this was one of the bills not part of our package but something that we supported the um it's prosecutor on feels very strongly that treatment mental health treatment drug treatment that really is the key to decreasing crime and to making a permanent change for a lot of these people who um probably would not be offenders if they had the proper treatment if they were no longer on drugs if they were getting proper counseling so this is one one of the bills that we supported that would require a guardian at light um be appointed to represent someone who is part of this the act um proceedings and act stands for assisted community treatment somebody who is not so mentally ill that they need to be at the state hospital or um hospitalized against their will so to speak but really need have been ordered to attend treatment um and I don't and there's just their um I'm sorry their diagnosis or their condition is such that they require regular treatments to ensure that they're not a danger to others to ensure that they are staying on their medications obtaining treat necessary treatment sometimes they're in such a state that they don't realize they need that help and so guardian at Lightham would basically help to stand in for them to assist them as needed and make sure that process can still keep moving forward well how do I get into this assisted community uh uh treatment program do I have to apply as a guardian at Lightham no as a person in the program oh somebody who's mentally ill um the law has changed a few years back so that any any interested party can basically um ask for somebody to be considered for these dcc a judge has to like a family member a close family member um could be police law enforcement um yeah there's a number of different avenues for this assisted community treatment so um and a judge has to decide and at that point the judge under this bill um uh the law would require the judge right there and then I suppose to appoint a guardian for this person um and the guardian from whom what pool of people would you get the guardian and what would the guardian do to to I guess be the guardian of the individual who's in the assisted community treatment program well it's a guardian at Lightham is just slightly different uh from a guardian um they're not a legal guardian for purposes of taking care of their affairs in any respect other than just representing them and being there for them with regards to these proceedings um but I believe there is a guardian at Lightham program with the courts where people can sign up lawyers might be interested in assisting um they can be guardian Lightham um I believe it's a paid paid um work um and so they many of them are lawyers and they can provide uh they wouldn't provide the legal counsel of course but they would basically be like an advocate more on a personal level for that person so you said this was not a bill that was in the uh in the bills the group of bills that the prosecutor uh submitted to the legislature um is this a good bill and how's it doing oh yes we we strongly supported this bill throughout the session as we do a number of other bills um there was another sex trafficking bill I think that was on our list that was actually introduced by the AGs and we were strong supporter of that as well um my job as well as my partner at the prosecuting training's office we go through every single bill literally every single bill that gets a hearing at the Capitol every session and we just review it for anything that might be relevant to our department it's of interest to the prosecutor um and like I said these treatment oriented bills are definitely high on his priority. You'll find a bill that did not come from any prosecuting attorney's office anywhere in the state did not come from the attorney general's office in the state it just came out of left field um that and what happens what kind of the bill can we expect from left field. That's just about every session you'll you'll have a bunch of on coming up but anybody can talk to their legislators about introducing bills if they think there's a change that needs to be done um made to the law they should definitely go and reach out to their legislator their representative or senator and see what can be done to make these changes it might be a statutory change it might be something that just needs to be altered in the process or the way things are carried out perhaps but when there is a change any of the legislators can introduce bills um the agencies are very fortunate that the senate president and our speaker introduce our packages um by request as a courtesy um but really all of the legislators introduce a number of bills every year and actually I believe this guardian at Lightham was introduced by House Speaker Psyche I'm not sure who prompted it but there's a good bill so he supported it. Well I really wonder um you know are all the bills so far that we talked about what a half a dozen of them uh did they pass are they all on the governor's desk? Yes these particular bills are all passed um of course there were dozens hundreds of other bills that tried to make it through the process and didn't get all the way some of them were tabled for next session or future sessions more discussion between stakeholders maybe they just needed a little more fine tuning or I'm just needed to completely go back to the drawing board and so they didn't get through. Oh is it is this the first or the second year of the biennium now? Is this the first year? So that means that a bill it didn't pass it didn't have enough you know support or whatever that didn't pass but we'll come back next year I suppose there was something like that here in the you know in the criminal code section too. That's right technically any of the bills that did not pass this year will live on until next session next year and they'll have another chance then or people can also introduce the totally new bill with the exact same wording if they like but these bills will live on even if they don't pass. They say you know a lot of people who introduce bills are prepared to have it go a couple of years there's some bills go three four five years before they actually either get passed or die really die and I guess the question is that you know for me I think most people in the state support what the prosecutor wants because they are law and order people they want law in order they want to give you you know whatever discretion whatever fine tune tune up things that you want they want to give you that so I would imagine you don't have a lot of opposition and I would imagine that the legislature you know gives you plenty of deference am I right? We do we're very fortunate to have support in good relationships with a number of other stakeholders with a lot of the legislators but let me tell you it is a it is a grueling process there we often have various discussions with the public defender's office the ACLU a number of other organizations that don't always see eye to eye with the way that we see things but that's what the legislative process is all about and the legislators they get all this information all the inputs we hope they give some weight to our our side of things How did you get into this Trisha? How did you get into the prosecutor's office of prosecution and then from there how did you get into you know a legislative work like this? Where did it dawn on you that you wanted to do this? Oh gosh you know this was actually kind of it just landed on my lap by chance and I'm so lucky that it did I previously worked as department of corporation counsel and at one point I was ready for a change I was asked to come over to join the prosecutor's office then under the new connoisseur administration and one of the things that I wanted to do when I left the department of corporation counsel was to really spread my wings to something totally different and of course coming to criminal law was a big change in itself but when there was an opportunity to do legislative work I'd done some advising for the city council when I was at corp council but nothing to this extent where I really get to testify on behalf of the prosecutor I work with the legislators the different stakeholders working groups it's great it's a creative side of law that's what I really like about it is that you're not just stuck with what's existing and that's what a lot of litigators like is they like the rules they like the case law and the precedent but this is is kind of a reform you're making law and you're having your casting a shadow for years to come and you're changing the system with the changes in the society and it's a tremendous contribution I think I envy you that so we have three or four more bills but we don't have the time and I don't know what I'm going to do about it I'm bang my head on the wall about that but maybe next time Trisha we can talk about some more of these bills and some more of the issues that you find that may deserve legislation I think that's very interesting what you do and I again I want to say as I said before that public confidence is everything and the supreme court building of New York state New York state and you know Bully Square lower Manhattan it it it recites Washington's statement is the firmest pillar of justice is the public confidence and the fair administration of justice is public confidence and I might have mangled that quote but it's something like that and and a lot of it falls on the prosecutor the prosecutor gives us confidence that we walk down the street we will be safe and we will you know and the government will take care of us because it's so important and you're right there on both levels we really appreciate that Trisha thank you very much for showing up at Think Tech and thank you for this discussion thank you so much for having me Jay really appreciate it Trisha Nakamatsu deputy prosecuting attorney for the city of Canada