Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 4, 1 ʻApelila 2005 — Hee's Bissen vote [ARTICLE+ILLUSTRATION]

Hee's Bissen vote

Regarding my vote against confirmation of Richard Bissen as a Circuit Court judge, OHA Trustee Boyd Mossman writes in his March KWO article: "...one cannot help but question the senator's motivation ... and his stubborn reliance upon his evidence, an 'anonymous' complaint. To the senator I simply say that I am glad he has chosen to be a polilieian and wish him well, but I am glad to know that he will never become a judge." Mossman is flat wrong. The "anonymous" complaints were by two well-known lawyers who asked not to be identified. More importantly, the complaints were verified as published opinions by Supreme Court Justice Simeon Acoba. Former Maui Prosecutor and Judge Mossman should know. After all, Mossman was the presiding judge in the case that was reversed by the Intermediate Court of Appeals known as State v. Sanchez, where former Prosecutor Bissen was found to have committed muhiple instances of prosecutorial misconduct. OHA polilieian Mossman should also know that there are Hawaiians he prosecuted

and sentenced to jail that wish he followed his own advice. People may not know that it is the judicial nominee that carries the burden of convincing the Senate that he should be confirmed, and any doubts should be resolved in favor of protecting the public. On this issue, USC law Professor Erwin Chemerinsky wrote, "The Senate is fully entitled to begin with a presumption against the nominee and confirm only if persuaded that the individual is worthy." What I found most troubling for nominee Bissen was that he failed to disclose two admonishments of misconduct to the Judiciary Committee, the Bar Association and the Judicial Selection Commission. Even after admitting to the Judiciary Committee that he should have disclosed the first case, State v. Sanchez, he "could not recall" the second case, State v. Schmidt. That inability to remember these cases is baffling and suggests the nominee either has difficulty recalling serious admonishments or that he may have believed the Senate would never have found out. This speaks to the elements of character and integrity. Prosecutorial misconduct is a serious offense. It is a zeal to convict at any

cost, at the expense of longstanding rules governing a prosecutor's ethical conduct and the right to a fair trial for the accused. Cases like Sanchez are even more rare because the appellate court reversed the lower court's decision. Every lawyer and judge I have spoken to has said no one could "forget" a written court admonishment. In fact, to a person, eaeh has said it is those criticisms that are remembered most. They speak to the heart of one's professional conduct as being improper and unacceptable. Moreover, were it not for a single Maui lawyer who brought the Sanchez case to the Judiciary Committee, no one would ever have known. Only when asked did the nominee disclose the case to us. He never disclosed the second admonishment either verbally or in writing. In the second case, Schmidt, the Intermediate Court of Appeals in its published opinion admonished the nominee for improper behavior involving a theft case. Again, had it not been for one single Maui lawyer the Senate would never have known about it. Furthermore, during the floor vote seven Senate members voted "Yes, with reservations." That suggests they

continue to doubt the fitness of this nominee to sit in judgment over others accused of crimes that include rape, assault and murder. Finally, we should remember that no person is entitled to a seat on the Circuit Court. Nor should a judgeship be viewed as a reward, and if a nominee cannot clearly satisfy the Senate without any reservations, the people of Hawai'i should not bear the risk of entrusting that individual with the reins of judicial power. U.S. Sen. Robert Byrd said, "The benefit of any doubt should be resolved in favor of the people. If there is a cloud of doubt, this is the last ehanee ... if there is a doubt, I say resolve it in the interest of our country and its future, and in the interest of the Court." Senator Byrd is right. This was the last ehanee for ten years. Because of this nominee's courtroom indiscretions, the court's admonishments in two separate cases and the nominee's inability to recall and voluntarily disclose the admonishments to the Judiciary Committee, it was with regret and sadness I voted no. Sen. Clayton Hee Dist. 23, Kahuku - Kāne'ohe

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