A Kona Circuit Court judge on Thursday denied release and set a trial date for a 19-year-old man accused of sexually assaulting a septuagenarian last summer at a Kawaihae campground.
Judge Robert D.S Kim denied Special Deputy Attorney General Kristen Yamamoto’s motion to continue the trial of Zeth Browder filed May 13 because the issue was moot due to all jury trials being suspended until after June 30 by Hawaii Supreme Court Chief Justice Mark Recktenwald.
Yamamoto argued via teleconference from Honolulu on May 21 that the victim was unable to appear in person amid the pandemic because of her advanced age and medical history, warranting the continuation of Browder’s jury trial that had been set for June 2. Yamamoto is prosecuting the case because of an undisclosed conflict of interest with the Hawaii County Office of the Prosecuting Attorney.
Kim postponed his ruling until Thursday because the court was a awaiting new order from Recktenwald extending an April 27 order that postponed all jury trials to dates until after May 29to ensure the health and safety of court personnel and users and minimize the risk of spreading COVID-19 in the courts. On May 22. Recktenwald issued an order suspending all jury trials until after June 30, unless otherwise ordered by the chief judge of the respective circuit.
Kim set the new trial date for Sept. 1 referring to Recktenwald’s new order and “extraordinary circumstances affecting the judiciary in Hawaii because of COVID.”
“Our effort has been delayed because of the budget crunch. We’ve had a set back in getting the courtrooms safe for the community and jurors,” said Kim of the months long delay in jury trials. “The Chief Justice is working with the federal courts to get jury trials going. I’m not aware of any court in any state having jury trials now.”
Browder’s Deputy Public Defender James Greenberg then argued in support of his motion to grant Browder supervised release for humanitarian reasons stating jail is a dangerous place to be with the coronavirus. It was the second time Browder’s attorney has filed the motion, following an attempt in April that was withdrawn when Browder was unable to secure a place of residence.
“I don’t think he should be considered dangerous. He has no prior record of violence or criminal convictions,” argued Greenberg.
Greenberg also stated Browder, who appeared Thursday via video conference, is innocent until proven guilty, has been in jail for a year and called the victim’s testimony a “fictitious report.” He acquiesced Browder still does not have a place to stay if released, but noted that was not a requirement for supervised release.
“Maybe we can find him a residence,” he said. “Now, we have COVID. When is it going to be safe to have jury trials?”
Yamamoto argued Browder was indicted by a grand jury and is a danger to the community, referring to the Intake Service report from June 19, 2019, stating he was not eligible for release because of the seriousness of the felony charges, his homelessness and previous drug use.
Kim denied Greenberg’s motion to grant Browder supervised release, agreeing with prosecutor’s that the teen posed a threat to the community.
Browder has been confined at Hawaii Community Correction Center in lieu of $166,000 bail since his arrest last June. He has pleaded not guilty to two counts each first-degree sexual assault and third-degree sexual assault and one count each first-degree burglary, kidnapping and tampering with evidence.
According to prosecutors and police, the female victim, now 79 years old, reported that she had been sexually assaulted by a man who was also camping at Spencer Beach Park, a county facility in South Kohala. Police identified and subsequently charged Browder in connection with the alleged crime.
“You are not alone,” Kim told Browder. “There’s a lot of people in your situation. We are in uncharted waters.”
Kim said the Judiciary is working to get it safe for counsel, the defendant, witnesses and jury to make sure justice is served.
