KEALAKEKUA — State Department of Public Safety Director Nolan Espinda on Friday morning acknowledged his department’s mistake in releasing a pre-trial murder suspect from Hawaii Community Correctional Center four days ago.
“We express our deepest regret for this error,” Espinda said during a press conference.
Espinda said he was notified about Brian Lee Smith’s wrongful release at 8:40 a.m. Thursday.
“The reality is we made the release on Tuesday and did not know it was an error until yesterday morning,” Espinda said.
Details between the time of Smith’s release and Thursday are being investigated.
“The staff enacting the release believed they had done so correctly,” Espinda said.
Smith, who turned himself in and was in court Friday, faces numerous charges, including second-degree murder, for a shooting incident that occurred June 23 on Painted Church Road in Honaunau. The shooting resulted in the death of Thomas Ballesteros Jr. Smith and another male suffered gunshot wounds during the incident.
“On behalf of the Hawaii Community Correctional Center and Department of Public Safety, I want to express our deepest regrets for the undue duress our error caused the Hawaii Island community,” Espinda said.
When Hawaii County prosecutors learned about Smith’s release from HCCC Thursday morning, they called for a status hearing in the case that day. When the 49-year-old was a no-show, a $2 million bench warrant was issued for his arrest.
“We rely on the system, and it is a public safety issue,” said Deputy Prosecutor Mark Disher on Friday.
Hawaii Police Department Maj. Robert Wagner said Smith contacted authorities from an establishment in Captain Cook along Mamalahoa Highway to turn himself in. During a hearing Friday to discuss the return of warrant, Smith told Kona Circuit Court Judge Melvin Fujino he made the call to police at 11 p.m.
During Friday’s hearing, Smith appeared before Fujino on crutches. Deputy Prosecutor Chase Murray told the judge the state didn’t intend to file a contempt of court charge and asked that bail be reinstated to $1.15 million.
Smith’s attorney, Jason Kwiat, argued for a bail reduction to $25,000. However, Fujino ultimately decided to increase the bail to $2 million.
“I was a little surprised by the increase, but that’s the judge’s discretion,” Kwiat said outside the courtroom after Friday’s hearing.
Smith’s case will proceed as scheduled, with a jury trial slated for Nov. 13.
“Brian turned himself in because he believes he’s innocent and anxious to let the jury and public hear his side of the story,” Kwiat said.
An indictment filed July 9 in Kona Circuit Court charged Smith with second-degree murder, second-degree attempted murder, first-degree attempted murder, two counts of ownership or possession (firearm) prohibited and two counts of carrying or use of a firearm in the commission of a separate felony.
Smith appeared July 20 before Fujino for his arraignment and plea. Smith was in custody at the time and entered a plea of not guilty. Bail was set at $1.15 million.
Disher said Smith was supposed to be detained on that bail. However, the prosecutor could not say how Smith was mistakenly released.
Kwiat said he learned about his client’s release four hours after Smith was released from HCCC. The attorney said he asked HCCC staff if his client posted bail. He was told Smith did not.
“He said he just had release papers,” Kwiat recalled of Tuesday’s conversation with an HCCC employee.
As this time, Espinda said, no HCCC employees have been placed on leave as the erroneous release is still under investigation. He added authorities will review the circumstances surrounding the release and what documents were or were not in place.
“We continue to work with a system that is reliant on hand-to-hand court delivery of court documents, interpretation of those documents by corrections staff and proper enactment of the documentation and the intent in the court documents,” Espinda said. “In this particular case, we readily admit our error.”
This isn’t the first incident of its kind.
In February, a bank robbery suspect was reportedly released accidentally from jail because of a staff mix-up before being arrested later without incident.
Last June, a man awaiting trial for numerous auto thefts was released and later apprehended following a “paperwork snafu,” in the words of a deputy prosecutor.
In that case, the Circuit Court didn’t issue orders related to bail or paperwork authorizing the suspect’s continued detention at HCCC, the Department of Public Safety’s spokeswoman said at the time.
The Hilo District Court dismissed the cases and ordered his release, the spokeswoman added, and HCCC “followed through with the order and released him.”
A Tribune-Herald article about that incident noted it was the third time since 2013 that a high-profile defendant was released from custody because of paperwork problems between the courthouse and HCCC.
Email Tiffany DeMasters at tdemasters@westhawaiitoday.com.
