HONOLULU -- A school portrait photographer accused of sex assault had the charges against him dropped Friday because of a mistake in the grand jury that indicted him.

It turns out that there were not enough votes in the grand jury to indict Gerard Mueden. Now, prosecutors must decide if they will try to charge him again. 


Mueden, 31, was accused of sexually touching two 10-year-olds on picture day at Lehua Elementary School.

The children testified to a grand jury panel, which could not come up with enough votes to indict him. However, in a rare mistake the indictment went ahead anyway.

"There should never have been an indictment," defense attorney Myron Takemoto said.

Grand jury proceedings are so secret no one knows how the indictment went forward without enough votes. All that is known is that a few days after it was announced, the grand jury foreman told the court it was a mistake.

Prosecutors said they did not know the grand jury didn't have the votes.

"The state acted in good faith in believing this was a viable charge," Deputy Prosecutor Thalia Murphy said.

Prosecutors agreed the charges had to be dropped, but asked to try and charge Mueden again. The defense argued that the illegal indictment already destroyed Mueden's reputation and career and another charge would wreck his chance for a fair trial.

"There needs to be some type of sanction so that this situation will never happen again, but it's not their fault. They didn't do the miscount," Takemoto said.

Because the mistake was not the prosecution's fault the judge left the door open to recharging Mueden. The prosecutor would not comment on whether she would pursue a case that has been rejected by grand jurors.

If prosecutors seek a new indictment, it would be with a new panel of grand jurors.