“That's not all life tenure and zero accountability have produced lately. But it's enough.”

This is an interesting case that examines the authority of rules of evidence, and rules of procedure. It’s a case from the Hawai’i Supreme Court voiding a rape conviction from 1990 which rested on “CSI” type evidence that was not, in fact, valid evidence. (“CSI” wasn’t a thing in 1990, but most of us recognize the reference today.  In the 1960’s it was the FBI whose word was as sound as the gospel, thanks largely to Ford and Efren Zimbalist, Jr. Now CSI is the word of God. But as this case illustrates, it ain’t that simple.)

To state it plainly, an FBI expert testified at trial that hair and fiber samples taken from the clothing of the rape victim, matched samples from the accused himself, and the car where the rape allegedly took place. The problem arose in 2009, when a study of how such materials were analyzed found that, at best, they could be identified only as classes of material, but not as  material obtained from a specific source (rather than general sources).  This is where the rules of evidence enter the chat.

Courts run on two primary sets of rules which determine the application of laws and even constitutional provisions to cases. One set is procedural; how cases and appeals are conducted.  These are designed to insure justice, but also to promote judicial economy and even closure. Cases must come to conclusions. Endless appeals just for the sake of appeal are a waste of resources and punitive to some party’s interests. See, e.g., Trump’s continuous appeals of E.Jean Carroll’s judgements against him. In the defamation case, those appeals are now ended. Procedure prevails over petulance. A rare case proving clearly the value of such rules. In most cases, it’s not that simple.

The other set of rules are the rules of evidence. These are even more important to justice than the rules of procedure. “Change the facts, change the outcome,” is a basic principle of American law. Rules of evidence don’t determine the facts; the trial court does that (another matter for the rules of procedure). Rules of evidence determine what facts can be considered by the trier of fact. The Hawai’i Supreme Court holds that scientific evidence like hair and fiber analysis which can be shown, even 40 years later, to be an unscientific analysis, voids a criminal conviction. The act of voiding the conviction is a procedural matter. The determination that such “evidence” is not evidence, rests in applying the rules of evidence.

There’s an interesting parallel here to the “presumption of regularity” which is currently being shredded by the federal courts. The presumption is that the DOJ is professional and competent and sound, and its representations can be accepted as valid, absent strong contrary evidence. I would not argue that was ever an unalloyed good, but it was reality. Comparably, judges are not scientists. Under the general (there are federal rules, and each state has their own) rules of evidence, scientific analysis, once proven in court and accepted there, remains presumptively valid until strong contrary evidence is presented. In this case, the Hawai’i Supreme Court took judicial notice of that contrary evidence. Another procedural matter that I won’t belabor here.

The court ruled that the evidence presented in 1990 was not admissible, because it wasn’t scientifically valid. It was thought to be then, but the court holds that later proof it was invalid, means it was never admissible. Which is an evidentiary and procedural holding. Sometimes the two work to see justice done, however belatedly.

The court gets into a long, and valuable, discussion about “false evidence” v. newly found evidence. Again, a procedural issue. Courts cannot allow constant appeals based solely on “new evidence” claims. No case would ever be final, no court judgement trustworthy. But “false evidence,” the Hawai’i court holds, raises due process issues, and that is more fundamental than procedural issues. Failure to follow procedure can cost you a chance to appeal. New evidence can be denied review based on procedural grounds. Due process is more fundamental; the court must follow due process, or invalidate its own proceedings. The Hawai’i court rests its conclusion on U.S. Supreme Court decisions. and the Hawai’i constitution. Here’s an example of how the court puts it:

In contrast, court rules create the new evidence standard. HRPP Rule 40 reflects prudential concerns about when post-conviction relief is appropriate. The due diligence requirement and probability-of-different-outcome standard promote finality and deter “sandbagging,” the strategic withholding of evidence at trial only to raise it later. See McNulty, 60 Haw. at 268, 588 P.2d at 445 (“the composite knowledge of both the accused and his counsel will be considered” to determine whether the defendant diligently tried to locate the evidence); Eason v. State, 157 Hawai'i 252, 267, 576 P.3d 765, 780 (2025) (Rule 40’s limitations on post-conviction relief “provid[e] a balanced approach to post-convictions proceedings that maintain the integrity of criminal convictions while also comporting with constitutional due process requirements.”) (quoting Judiciary, Testimony to House Committee on Judiciary on S.B. 2, Proposed H.D. 1, 30th Leg., Reg. Sess. (Mar. 27, 2019)).

But these are not constitutional commands. They are judge-made rules that address prudential concerns appropriate only for discrete circumstances.

Newly discovered evidence is a prudential doctrine. False evidence is a constitutional violation. When the government obtains a conviction using false evidence, the conviction offends due process. Stone, 147 Hawai'i at 271, 465 P.3d at 718. Constitutional protections require applying the false evidence standard rather than McNulty’s prudential rule.

And a quick excerpt of how the state constitution controls in this case:

Granillo is not less wrongly convicted because everyone in 1990 acted in good faith. He sits in prison on testimony the science no longer supports. Good faith describes the lawyers. It does not describe the defendant's plight. A standard that requires fault before relief leaves them without a remedy. Article I, section 5 exists for cases like this one.

None of this is why anyone outside Hawai’i is paying attention to this case. And what I’ve quoted is the majority distinguishing the reasoning of the concurrence from the majority opinion. Which is the context for this blistering assault on the Roberts Court.

The concurring opinion looks outside Hawai'i for support. To a concurrence in Ex Parte Warner cautioning against side-stepping prosecutorial knowledge. 721 S.W.3d 436, 445 (Tex. Crim. App. 2025) (Finley, J., concurring). Warner is one judge's separate writing on a denied habeas petition. It binds no one. Not even in Texas. And the federal due process doctrine that animates it cannot tell this court how to read article I, section 5.

We are not side-stepping anything. We are doing what state constitutionalism asks us to do. Stand our ground.

The concurrence seizes on the federal precedent the Texas court's concurring judge cited. The United States Supreme Court has “never held that an unknowing use of false evidence violates due process,” that judge wrote. Warner, 721 S.W.3d at 443 (Finley, J., concurring). The concurrence also cites Glossip v. Oklahoma, 604 U.S. 226, 145 S.Ct. 612, 221 L.Ed.2d 90 (2025), as confirming a knowledge requirement. But Glossip addressed a knowing-use case. It involved a prosecutor who knew. Id. at 228, 145 S.Ct. 612. It did not confront what shakes out when an entire branch of forensic science collapses.

That statement is not a boundary. Glossip described the precedent as it stood. It did not shut the door on cases like this one.

The concurrence's insistence that the prosecution's knowledge concession in Butler counsels adoption of Stone in this context, like its reliance on Glossip, ultimately depends on the premise that federal constitutional doctrine controls this court's interpretation of article I, section 5. It does not.

We interpret the Hawai'i Constitution on its own terms. The United State Supreme Court's construction of the federal Due Process Clause does not define the protections of our state's due process clause. This court “reason[s] independently, untethered from the Supreme Court's analysis of the United States Constitution.” State v. Wilson, 154 Hawai'i 8, 14, 543 P.3d 440, 446 (2024).

The Court that now defines federal due process does not honor the work of 1954. It revives the work of 1857. The work of 1896. The Constitution must be interpreted “according to its true intent and meaning when it was adopted.” Dred Scott v. Sandford, 60 U.S. 393, 405, 19 How. 393, 15 L.Ed. 691 (1857).

Today's hubristic originalists use the same method to control modern life. See City & Cnty. of Honolulu v. Sunoco LP, 153 Hawai'i 326, 361, 537 P.3d 1173, 1208 (2023) (Eddins, J., concurring) (“A justice's personal values and ideas about the very old days suddenly control the lives of present and future generations.”).

The Court overrides what Congress passed. It overrides what the people chose. All to serve its own ends.

What this Court has done to constitutional rights, democratic institutions, and the rule of law explains why Hawai'i's Constitution takes no instruction from it.

Article I, section 5 provides versatile and sovereign protection. This court does not anchor Hawai'i's due process rights to the federal floor. Especially one that keeps sinking.

We take no guidance on the meaning of due process from a court that gutted due process protections in Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022). Zuffante called it straight. Dobbs erased a “generations-long constitutional right, stripping autonomy from half the population, and empowering states to force birth.” State v. Zuffante, 157 Hawai'i 194, 200, 576 P.3d 243, 249 (2025).

Article I, section 5 does not import that results-driven approach to due process. We follow principles, not agendas.

The Supreme Court's imperious ideology does not stop at due process. The same jurisprudence has cratered democracy itself. Start with the Voting Rights Act.

The Roberts Court did what Congress never would. It rewrote the Voting Rights Act of 1965, a cornerstone of American civil rights, democratically enacted and repeatedly reauthorized. Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), began the judicial demolition, inventing a textually unsupported equal-sovereignty fiction and striking down preclearance on a hunch that the law worked too well. Brnovich v. Democratic National Committee, 594 U.S. 647, 141 S.Ct. 2321, 210 L.Ed.2d 753 (2021), fabricated “guideposts” nowhere in Section 2 to greenlight racial discrimination in voting. Louisiana v. Callais, 608 U.S. ––––, 146 S. Ct. 1131, ––– L.Ed.2d –––– (Apr. 29, 2026), buried what remained of the crown jewel of the civil rights movement. Pretend law for a real statute.

The Court then ditched its own thirty-two day default for releasing decisions and hustled out its judgment mid-primary, a favor granted over objection only twice in twenty-five years. Callais v. Louisiana, 608 U.S. ––––, 146 S. Ct. 1111, 1113, ––– L.Ed.2d –––– (May 4, 2026) (Jackson, J., dissenting). Weeks later, on its shadow docket, the Court tossed an eleven-day trial record built on fifty-one witnesses, 790 exhibits, 2,600 pages of testimony, and a 270-page opinion by a three-judge court. See Singleton v. Allen, 782 F. Supp. 3d 1092, 1115, 1355 (N.D. Ala. 2025). It resurrected a tainted congressional map the three-judge factfinders found deliberately entrenched racial bias against Black voters. Allen v. Milligan, 608 U.S. ––––, 146 S. Ct. 1377, ––– L.Ed.2d –––– (June 2, 2026); see also Hilo Bay Marina, LLC v. State, 156 Hawai'i 478, 516, 575 P.3d 568, 606 (2025) (The “Court's frequent misrepresentation of the factual record and its throw-judges-under-the-bus disdain for district courts, the fact-finders of the federal judiciary, harm the justice system.”).

The Roberts Court sees only white. It refuses to acknowledge who the Equal Protection Clause was written to protect. The freed people, their descendants, and all others denied equal citizenship. U.S. Const. amend. XIV, § 1. It turns its back on what is in plain sight. The Fourteenth Amendment is not colorblind. It never was.

The Court calls the Constitution colorblind while engineering the dilution of Black votes, the unraveling of hard-fought civil rights remedies, and the erasure of Black history. That is not blindness. That is white sight, by design.

A Constitution interpreted this way is not colorblind. It is whatever the Court needs it to be. A way to advance its partisan project. The damage to democracy extends beyond the Voting Rights Act.

In Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), the Court claimed fidelity to text, history, and tradition while invalidating yet another democratically vetted law, handing corporations the same speech rights as flesh-and-blood Americans and letting dollars talk louder than voters. See Sunoco, 153 Hawai'i at 362, 537 P.3d at 1209 (Eddins, J., concurring) (originalism applies selectively and vanishes inconveniently); Leo E. Strine, Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L. Rev. 877 (2016) (Citizens United cannot be reconciled with corporate law history).

Other decisions followed. The Court abandoned partisan gerrymandering to the gerrymanderers, refusing for the first time to remedy a constitutional violation because it believed the task beyond judicial competence. Rucho v. Common Cause, 588 U.S. 684, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019); see id. at 721, 139 S.Ct. 2484 (Kagan, J., dissenting). It placed a president above the law. Trump v. United States, 603 U.S. 593, 144 S.Ct. 2312, 219 L.Ed.2d 991 (2024).

Last month, Nat'l Republican Senatorial Comm. v. Fed. Election Comm'n, 609 U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (June 30, 2026), made Citizens United look quaint, shredding coordinated spending limits Congress had enacted, and ensuring that those who bankroll elections drown out the ordinary person. Billionaires spend to be repaid. Everyone else just votes. The Roberts Court has made sure one's wealth counts more than another's vote.

Rulings run in one direction, time after time. Weakening protections for those with less power. Fortifying those with more. The pattern speaks for itself. A court that systematically dismantles democratic safeguards, steamrolls constitutional liberties, and tramples human dignity does not chart the course for the Hawai'i Constitution.

Our constitutional system was designed for times like these. Federalism is not a formality. It is the architecture. The framers built dual sovereignty into the structure of American government as an independent check against concentrated federal power. A Supreme Court driven by agenda and intent on swiping power that belongs to the people is exactly what that check was built for.

When six justices walk away from those they are supposed to protect, state constitutions hold the line. That is not defiance. That is the design.

State constitutionalism makes it easy to consider Roberts Court jurisprudence “white noise.” See Hilo Bay Marina, 156 Hawai'i at 518, 575 P.3d at 608.

Add it all up. Draining due process. Rolling back voting rights. Flooding elections with money. Rubber-stamping gerrymandering. Crowning a president. Blessing discrimination in the name of the Constitution. Fulton v. City of Philadelphia, Pa., 593 U.S. 522, 141 S.Ct. 1868, 210 L.Ed.2d 137 (2021); 303 Creative LLC v. Elenis, 600 U.S. 570, 143 S.Ct. 2298, 216 L.Ed.2d 1131 (2023). Looking at naked racism and seeing none of it. Mullin v. Doe, 609 U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (June 25, 2026) (racist words not “overtly racial”). Making the country more dangerous with a Second Amendment unmoored from text or history and unrecognizable to the framers who wrote it. New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022); Wilson, 154 Hawai'i at 22, 543 P.3d at 454 (“disabl[ing] the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement” with its deadly jurisprudence). Then striking down a careful law and showing disdain for Hawai'i's constitutional traditions. Wolford v. Lopez, 609 U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (June 25, 2026).

Subverting congressional choices with a homemade “major questions” power grab that plays “get-out-of-text-free cards” to block agencies from doing what Congress told them to do. West Virginia v. Env't Prot. Agency, 597 U.S. 697, 779, 142 S.Ct. 2587, 213 L.Ed.2d 896 (2022) (Kagan, J., dissenting). Then commandeering the interpretive authority Congress gave federal agencies, overruling Chevron after forty years because, to this particular Court, precedent is advisory. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 144 S.Ct. 2244, 219 L.Ed.2d 832 (2024).

This term, transmuting federal spending programs into private contracts, the Court forged the Spending Clause to “reduce[ ] some of Congress's greatest legislative achievements.” Landor v. Louisiana Dep't of Corr. & Pub. Safety, 609 U.S. ––––, 146 S.Ct. 1931, ––– L.Ed.2d –––– (June 23, 2026) (Jackson, J., dissenting). Days later, it freed the President to fire at will the very commissioners a law shielded from removal, discarding a unanimous opinion, Humphrey's Executor, on a cherry-picked slice of history - a century of settled practice recast as a mistake, competent governance sacrificed to the partisan cause. Trump v. Slaughter, 609 U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (June 29, 2026). The next morning, fair-weather textualists – living constitution originalists, really - deserted the text and our nation's history the moment it promised citizenship, one vote from writing that right out of the Constitution. Trump v. Barbara, 609 U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (June 30, 2026).

That's not all life tenure and zero accountability have produced lately. But it's enough.

Article I, section 5 needs no part of this. The Hawai'i Constitution was built to stand on its own. And so it does.

I pause to note the latest print issue of “The New Yorker” has an article about the Roberts court, which features the Chief Justice demurring that the justices get along very well. Which isn’t exactly the thrust of the criticism of his court; especially not here.

I have to say I appreciate the analysis, even as I question its place in a judicial opinion. It’s a sound critique, IMHLO, but the Voting Rights Act and Citizens United and Dobbs don’t really have anything to do with the legal issues in this case. They don’t even challenge the court’s interpretation of the Hawai’ian constitution.

OTOH, sometimes the soap box you have, is the one you have to use. As this case illustrates, there are rules of procedure, and rules of evidence, and constitutional requirements. And there is a principle of stare decisis that is as fundamental to the legal system as due process, procedure, and evidentiary rules. Those should shift slowly, as necessary, to be sure justice is not bending to convenience. This opinion makes a very good argument for that position, at a time when we need it.  Life time tenure and zero accountability do, indeed, breed a contempt for the law, and for justice. But when you start with racists who see only white….