 This is Think Tech Hawaii, Community Matters here. Live, I'm Jay Fidel. We do the squeeze show at 3.30. Here on Think Tech, we have a special visitor, a special guest, that we kind of roped him into the show. This is a retired judge, chief judge of the Second Circuit of Hawaii, Shackley Rufeno. Welcome back to the show. Great to have you, Shackley. Thank you, Jay. Glad to be back. You are an expert in Mongolia, and that's why we're calling this show the New Process in Mongolia. What can we learn from each other? So much to discuss. So my first question for you, and you've been there several times. It's one of your favorite places, yeah? Why? Oh, I first started going there with military. They actually asked for a program of U.S. military officers, all JAG officers, from the Defense Institute of International Legal Studies in Newport, Rhode Island, to come out and put on a... It's for the Naval Justice School there. That's right. Exactly. And that's where this is headquartered as well. And put on a training program for their judges. And it was attended by all their Supreme Court justices as well as other judges from other courts. And I got to know two people there very well. One was Justice Ken Zorig, who was Associate Justice, and another was Justice Janssen, who has since passed away. And this was years ago now. And we stayed friends over the years. And I went back several times with the military. One of the things interesting that they do is they send troops out for peacekeeping missions for the U.N. Apparently, there's a lot of money in that for these small countries. Because they get paid for doing the peacekeeping. Yeah. And sometimes they share the money with soldiers. And sometimes they don't. Yeah. But there's money in it. But before we let them loose on behalf of the U.N. with their blue helmets, we want to make sure that they have some training in human rights and military justice and things like that. And if there is a status of forces agreement, which covers what happens if a soldier gets in trouble for one reason or another, we want to make sure they understand about those things. So I was returning doing those things. And then I just started going for fun, because Judge and I became good friends. It was social. Yeah. And we did a program a year or so ago when his daughter got married. His daughter worked in my chambers for a summer and stayed with me and wanted to become a lawyer very bad like her dad. And she did. She went back to New York, became a lawyer and got married and attended her wedding in Mongolia. And what's happened now is... We had photographs of that. That's right. I remember. Well, the whole family for a number of years lived in Washington, D.C., where the justice was working on a Ph.D. in constitutional law. So she grew up basically in America, and so did her brother. And so it was hard for her to go back. And when the time came and she figured a way to continue her education, and then she ended up marrying a guy from New York. Perfect story. Now she's working for one of our lady associate judges of our Intermediate Court of Appeals and plans to stay in Hawaii. How interesting. Truth is though, I never met... Aside from the people that you brought one time to our studio and we met them, judges and whatnot a couple of years ago, I never really met Mongolian people. I just haven't run into them. There are not a lot of them around. There are more and more. The largest population outside of Mongolia is in Washington, D.C. And there's, I guess, a sizable group in San Francisco. In fact, I was having a hamburger on Broadway one day. And I asked this woman because she looked Asian and I asked her where she was from and she said, So I'm from Mongolia. And I said, Well, sign by no. I said, Hi. She just about dropped her jaw. But let me know that's fabulous. I mean, I go through the same thing. I go to the mainland, I'm always looking for Asian faces. I want to find out what's going on. My story is, it's great. Who are you? And we can do that because we're from Hawaii. We have special license to do that because we're from Hawaii, right? I don't feel uncomfortable doing it. Me too. Sure. So anyway, when Justice Gansorg returned to Mongolia, first he was the lawyer for the president of Mongolia and then he moved from there to today he is the deputy assistant prosecuting attorney for Mongolia. They have a statewide prosecutor's office and so he's one of the top management there. And they're putting on an international law conference. I'm not sure how many people from other places there will be except me, but he invited me to come. They've adopted a proceeding called a preliminary hearing, which we have here. It's a criminal matter. Right, right. It's a way to provide due process and it's a way to interface a third party between the power of the state and the individual who's being charged with a crime. The prosecutor, I mean, keep the prosecutor under control that way. That's right. The traditional way was the grand jury. That's in our U.S. Constitution. That's in our Hawaii Constitution. But many states also have, also provide for a preliminary hearing as an alternative to that. Who makes the choice? Prosecutor, as far as I know. Yeah, yeah, yeah. Yeah, it's not the court. And I'm not, I think it's, the preliminary hearings are used in particular kinds of cases. And I'm not sure how the prosecutor makes those decisions. If you take a preliminary hearing, then effectively you can get past that level of inquiry to what amounts to an indictment and thus a trial. Well, with the grand jury, that is a private proceeding that occurs in the courthouse. There'll be maybe 16 to 23 members of the grand jury. They're selected separately from regular juries. And they meet maybe once a month or once every two months. Usually there's one assigned to each courtroom. And when the prosecutor has enough evidence that they want to present a case to the grand jury, they call the grand jury intercession. It's secret. The defendant is not there. The defendant probably most likely doesn't even know about it. And it's all secret. The next thing he has a knock on his door with somebody with an indictment. Yeah, it could be. And there's an old joke, you know, that a good prosecutor could indict a ham sandwich. Because it's one sided. Yeah, yeah, that's what. But there still has to be evidence. And technically, we give a charge to the grand jury instructing them what their powers are. There is a judge. You've done that with the grand jury. I don't sit in there. The grand jury doesn't sit without a judge, does it? Yes, it does. No judges involved. Right. Well, the way we do it in Hawaii is we assign a grand jury counsel to the grand jury. So they have their lawyer. It's paid by the state. And so if they have any questions about the law, then they can consult the lawyer. And they can either have them sit there during the proceedings so he cannot participate except to answer questions. And then after the prosecutor calls whatever witnesses he wants to call or she and present whatever evidence they wish to present, then the jury can ask for more evidence. You can say, we're not satisfied. You know, we want to hear other names may come up and they can request that those people be brought in. Side point. You know, my father was on the grand jury in New York for years. New York. Yeah, he loved it. And he prided himself on the grand juries that he sat on were quote, runaway end quote grand juries, which meant that they would read the paper and decide that somebody should be indicted and they would tell the prosecutor to bring evidence and then they would tell them what to do. So that was the definition of a runaway grand jury. They were running the prosecutor, not the other way around. Has that ever happened in Hawaii? Not that I'm aware of. But it could. I mean, they have quite a bit of power. So the defendant never knows about it and that's good because if there was a grand jury proceeding brought against someone in the community and the grand jury failed to find probable cause to believe that a crime had been committed and that the defendant committed the crime, then if it got out that the case had been brought before the grand jury, then his reputation might be ruined for no good reason. And so that's another reason to keep it secret. So you say that in Mongolia they have adopted the preliminary hearing mechanism, but do they have grand juries, too? I don't know that. I'm in the process of doing my research right now. I actually have a translated copy of the Constitution. Oh, no kidding. I'll be able to look and I can ask Gantzer, and I want to know because I want to be able to compare and contrast for them. I thought that might be helpful for them. But the difference between a preliminary hearing and a grand jury is that a preliminary hearing is an open court proceeding at which the defendant has a right to be present, has a right to be represented by his or her lawyer, and it's a great discovery tool for the defense. It's better for the defendant to have the preliminary hearing than the indictment. Well, except that it's public. So once you're there and you've been... Everybody knows. Right, that's right, and the press can come in and those are public proceedings, so I guess you could argue. It's nice to have the options, I guess, is a good way to put it. So how do they see us? How do the Mongolians see our system? I mean, you've had contact with them, you've talked with them, you have social experience with them, and you've seen their kids get married and all that and go to law school and become clerks to judges here. But I just wonder how they see the U.S., how they see our system, do they want to copy our system? Is our system attractive to them in some way? I think it must have some attraction. I can tell you, for instance, Justice Genzer called me about two years ago and asked me if I could arrange to have our prosecutor in Maui, JD Kim, put on a training program for his prosecutors, and he brought a group of 12 prosecutors over and prosecutor Kim was kind enough to, he had kind of a canned power point about the prosecutor's office and what their function was and what they did and how it worked, and he presented that, and they all found it very interesting. And, you know, they're so isolated. I mean, they're a completely landlocked country with Russia on one side and China on the other side, and they're trying to remain independent. They were not part of the Soviet Union. They were a buffer state, but they were totally dominated by the communist world and, you know, most of the monks were killed and a lot of terrible things happened like it. It goes on in a lot of those... What drives them now? The democracy? What's the form of government and all that? Yeah, it's basic democracy. I couldn't describe it in detail, but it's, I think, kind of a parliamentary democracy and they have elections and so on. Is it an advanced country? I mean, is it a comfortable place for travel? Is it a beautiful country place? Well, I think so. It's a beautiful, very beautiful country. And, but there's not much there because it's rolling grassland, most of it, and then in the northwest there are the all-time mountains, which are these huge mountains between China and Mongolia, across which the monks used to go to get to Tibet to do their pilgrimage. Tibet on one side, Russia on the other side. What else is contiguous? Well, China. I think maybe North Korea has a little chip there. And North Koreans do go there and work. But their economy is, I would say, sluggish because they don't make anything. Most of their produce for the country is agricultural. It's sheep and cattle and it's bitter cold in the winter for most of the months so they can't really grow anything. And there is some tourism. There are apparently great, number one, huge natural resources. Copper, gold. They have a gold rush there periodically. And it's like the wild west. And they also make interesting finds of dinosaur bones and dinosaur eggs and things like that. Great history. Yeah, very unique and interesting place. Now, since they were dominated by the Soviets, their culture isn't like China or Japan. You don't go there and get to feel like you're in an Asian country. It feels much more like you're in Armenia or Russia or some place like that. I want to explore more of that about life on the ground, life in the courts, life with the judges after this break. But before we take the break, I just want to ask, Alexa, what's the population of Mongolia? Oh, it's like about 3 million, I think. The population of Mongolia is about 2 million and 80,000. Oh, oh, oh. And on that note, let me make a short break. This is Think Tech Hawaii, raising public awareness. Hi, I'm Pete McGinnis-Mark and every Monday at one o'clock, I present Think Tech Hawaii's Research in Manila, where we bring together researchers from across the campus to describe a whole series of scientifically interesting topics of interest both to Hawaii and around the world. So hopefully you can join me one o'clock Monday afternoon for Think Tech Hawaii's Research in Manila. Aloha. My name is Mark Shklav. I'm the host of Think Tech Hawaii's Law Across the Sea. Law Across the Sea comes on every other Monday at 11 a.m. Please join us. I like to bring in guests that talk about all types of things that come across the sea to Hawaii, not just law, love, people, ideas, history. Please join us for Law Across the Sea. Aloha. Yes, we're back. We're live. We're so happy that we found out what the population of Mongolia was from Alexa. It's, what is it, $3,080,000, I think she said? Yes. Okay, that's pretty good. That's not counting the horses and the cows and the sheep. We're going to ask her that next. That's Judge Shackley-Refetto, Chief Judge of the Second Circuit, retired, a man who has spent a fair amount of time in Mongolia and who was going there again. We want to sort of examine his experience and his observations about Mongolia. I could just say one of the things I'm interested to learn is the way that they're structuring their preliminary hearing. Because, you know, we use standards of proof. You know, in a criminal case, you have to prove the case beyond a reasonable doubt. In a civil case, it's by a preponderance of the evidence. And in a preliminary hearing, it's a probable cause. All you have to do is provide sufficient evidence so that the decider, whether it's the grand jury or the judge in a preliminary hearing, can make a decision that there's sufficient evidence to say that a crime was committed. It's likely that a crime was committed. Likely is the operative word. Yeah, it's much lower than the other standards. But there's no way to mathematically quantify these things. That's why we say beyond a reasonable doubt and we say a preponderance of the evidence. I always understand that preponderance to mean probably negligent. I think that's a good way to put it. More probably than less probably. Well, that gets too tough. He gets tongue-tied. More probably so than not so. Did they do this level of sophistication? This is very sophisticated stuff. Our system, in any state, is very sophisticated. Where are they relative to the American way of looking at things? Well, I think most of the populations, I think, still lives in the countryside, but they're rapidly moving into the main city, which is Ulan-Batar, which is way overtaxed in terms of its infrastructure. They live in what they call GUR camps. G-E-R is the Mongolian word for what the Russians call a yurt. A belt tent home that they can just pick up and move as part of their nomadic life. And so these camps are really exploding and they have health problems there and so on. Which gets back to what do they do there? What can they look forward to? They have these extractive industries. Copper is a really big industry. These huge copper mines. But I guess Australia is kind of the same. They have a lot of mining and they sell a lot of their ores to China. And I'm sure that that's what happens to a lot of what's mined in Mongolia. But beyond that, I don't know. What about the punishments there? I mean, somebody finds probable cause on me. I go to trial, I get convicted. Am I going to go to jail for life? Or am I going to have a very civilized and less draconian result? Well, you'll have a trial. But I don't know. I've never seen one. That'd be so interesting to see one. You're going to get exposed to that on this. Maybe next month, about the 12th or so, I haven't got my reservations yet. But I'll be there a week. So it's for a conference, a panel, a briefing, if you will. It's a law conference. And they asked me to come and just kind of talk about what we've been talking about. And hopefully I'll learn more about what their law actually says. But I want to know how much evidence is enough. That's always an interesting question, because many countries don't use these concepts of standard of proof. And when you start talking to them, they get confused. They don't have a standard. They can't articulate it. Are they, as a country, as a people, are they literate? Do they read? Are they a nation of laws, the rule of law, as we see it? As far as I can see, yes. Wow, that is so true. One concern they do have, though, is because they don't have a sophisticated infrastructure of laws. They've only been a free country for, you know, not very many years. They may be victimized by organizations that will use the resources there for money laundering. And I know that the World Bank, this is the World Bank, I know the Asia Development Bank has recently put on a multi-part program to try to train bankers and prosecutors and other members of the government there in how to identify money laundering, what to do about it, why it's harmful to the country, and so on. And a friend of mine was participating in that. It's great, but, you know, it opens the whole door to something beyond probable cause and beyond criminal justice to call it business justice, you know, business disputes. And, for example, if I happen to be an investor and I want to invest in, call it an extraction business or a manufacturing business or who knows what kind of business, what kind of rule of law am I going to find? What kind of legal experience am I going to have, arbitration, mediation, litigation, how does that work? I don't know the answer to that question. I think you would want to be very careful though. Yeah. I mean, it's a young country and it does not have a long, it doesn't have a 230-year tradition of operating under a constitution with an elaborate, you know, set of commercial laws and so on like we have. They just don't have that. And I've never heard anybody say that the courts are crooked. I've heard that said about other countries that I've been to. Yeah. But I haven't heard that said about Mongolia though. Is there corruption? Probably some, no doubt. You know, the thing is that a country like Mongolia, as I've heard it from you, it's on a tipping point of some sort. You know, it's got to learn systems including legal systems from other places. It must move forward or be left behind in the 21st century. Yeah. It's got to learn how to do trade. It's got to learn to manage investments, offshore investments, foreign investments. And in order to do that, in order to do trade and manage investments from offshore, it's got to have a legal system that people will have some reliance on. Right. It's a critical thing for them. Well, I've worked with a couple of other people to try to introduce the Jessup International Law Mood Court Program there. And one of the things that has stopped us so far is the lack of language ability in English. In China, the kids learn English. And so you can go teach in English. Right. And they're pretty close to fluent. That's not true in Mongolia. Or they speak Mongolian. Yeah. Which is like what? Chinese? No, it's a unique language. So the Constitution is a focus. They say structurally, again, it's more like Korean, but it doesn't sound like Korean and doesn't look like it when it's written. And there was an ancient Mongolian script which is really quite beautiful and unique. And there was some effort to try to move back to that. But during the Soviet period, it was changed to the use of the Russian Cyrillic alphabet. And so they had to... And a spoken Mongolian sounds like Eskimo. I mean, it's hard to distinguish the words when you're listening to it. And so for them to render that in Cyrillic must have been a heck of a job. And I don't think they'll be changing it back except for scholars because it'll just be too difficult. When you go and when you have gone, you speak Mongolian? No. Speak English. And they speak English. My friends do, yeah. But not everybody. And younger people tend to like in every country. But you go to the countryside and they don't. So it seems to me, I'm sort of drawing these points together, is that if they want to improve their legal system, both criminal and civil, they have got to make sure the language is lingua franca for other places, I think, to learn, to use, to emulate whatever it is. To be able to come to America and get training. Right. Without the language skills that door shut. Yeah. And so first step, it's interesting to put all this together. First step, if I were on their path, I would say, well, we got to speak English. We got to proliferate English teachers. We got to make it ubiquitous in all the schools. And then we can move forward on many things, including law, business, trade, what have you. Yes. So we've talked to, as Oregon and I've talked about, they are interested in starting a paralegal school. And with that, introducing legal English as a place to start, which is, I think, a pretty good idea. That's a great idea. Yeah. Well, when you come back from the trip, can we circle back and see what happened and see what you learned and how the experience was? Absolutely. Absolutely. I'll know more about what they're doing. And, you know, I can explain a little bit, I hope. We're also going to go fishing. Of course. This is part of the program. Yeah. Chuck Lufetto, retired Chief Judge of the Second Circuit, joining us on the new due process in Mongolia. Thank you so much. Thank you, Jay. Good to see you. Aloha.