Nearly three years after he was sentenced to prison for terrorizing his wife with a semi-automatic handgun, Ernie Gomez has yet to spend a day behind bars.

For more than two years, he was free on bail while waiting for an appeal. When the appeal failed, the court took the extraordinary step in February of allowing Gomez to remain free while he pursued a pardon from Gov. Linda Lingle. The pardon case is pending.

"I'm appalled by the conduct of this judge and the court," said Annelle Amaral, a long-time victims advocate and former legislator who helped strengthen the state's domestic violence laws while in the Legislature. "It's the kind of story that scares me to death because it reinforces the belief that the system is not there to protect (victims). It sends absolutely the worst message to victims of domestic violence."

A Circuit Court judge allowed Gomez, a decorated Army soldier who had no previous criminal record, to remain free on bail while he appealed his 2005 conviction.

Gomez received a mandatory five-year prison term for holding the gun to his wife's head after he saw her kiss another soldier earlier in the day. Gomez, who at the time of the incident was a Honolulu police recruit, also was convicted of abusing his wife at their 'Ewa Beach home.

When Gomez's appeal was rejected in December 2007, the court granted the convicted felon's request to remain free while he pursued the pardon.

Even though court records indicate that Gomez's now ex-wife supports the pardon, advocates for domestic violence victims criticized Judge Michael Town's decisions allowing Gomez to remain free since the December 2005 sentencing.

The court's actions, the advocates say, reinforce the belief of many victims that Hawai'i's criminal justice system fails to hold abusers accountable and, when it does, it takes too long to do so.

Sandra Murphy, managing attorney for the Battered Women's Justice Project in Minnesota, said she has never heard of a domestic violence felon being spared going to prison while a pardon was pursued. She has been in the domestic abuse field for 13 years, including eight as a prosecutor.

"I'm rather aghast that the judiciary system would essentially bend over to such an extreme to accommodate this man," Murphy said, noting that many battered women nationally are serving prison sentences for acting in self-defense. Yet those women remain imprisoned while their appeals are pending, she said.

The Gomez case, Murphy added, was a "miscarriage of justice."

BACKED BY SUPPORTERS

Gomez's supporters have said that the five-year mandatory prison term for using a semi-automatic gun during a felony was unduly harsh given his background, including an exemplary military record, no other criminal conviction, a strong devotion to his family and the continued service to his country training soldiers headed to war. Numerous people, including current and former military supervisors, have written the court on his behalf.

Even Town, acknowledging Gomez's background, said in court that he would have been inclined to impose a lighter sentence if he had that discretion.

"I've watched him carefully throughout this trial," Town said during one hearing. "He has behaved impeccably in this court. He did not behave impeccably that day (of the crime), and he knows it."

In a phone interview yesterday, Gomez, who has since moved to New York, remarried and is a sergeant first class in the Army, said he takes full responsibility for what he did but believes the court should have been able to consider his entire situation before issuing an appropriate sentence. In that context, he believes he deserves a second chance.

"Not all cases are the same," Gomez said. "Not everyone who breaks the law is the same. ... Not everybody can be judged on the same scale."

Gomez and his attorney, deputy public defender Taryn Tomasa, are scheduled to appear before Town today to update the court on his pardon request. It is still before the Hawai'i Paroling Authority, whose board recently reviewed the agency's investigation of the request, adopted a recommendation and is forwarding the matter to the Department of Public Safety director, according to parole administrator Max Otani. He declined to say what the board recommended.

UNPRECEDENTED CASE

Gomez and Tomasa acknowledged that Town could have a change of heart at today's hearing and decide to imprison Gomez immediately. But given the goals of criminal punishments, such as deterrence and rehabilitation, and the mandatory nature of the sentence with no possibility of parole, Gomez makes an ideal candidate for a pardon and should remain free pending the governor's decision, Tomasa said.

"You're not going to solve all these (social) problems just locking somebody up," she said. Tomasa also noted that people guilty of far worse crimes have served far less than five years in prison.

The Gomez case appears to be breaking new ground in Hawai'i's criminal justice arena. Attorneys have researched as far back as the seventh century to trace the history of pardons and clemency under the English legal system to argue the case. Tomasa, in one filing, even mentioned President Bush's pardon of Scooter Libby.

Otani, the parole administrator, said he is not aware of any other case the board has reviewed in which a prison sentence for a convicted felon was put on hold while a pardon was pursued.

Maurice Arrisgado, the senior deputy prosecutor who handled the Gomez trial, likewise said he believes the case is unprecedented in Hawai'i. In his 25 years as a prosecutor, "I've never heard of anything like this here," he said.

Arrisgado opposed both requests by Gomez to defer the prison sentence, but Town approved them over the prosecutor's objections.

More recently, Arrisgado asked the state Supreme Court to order Town to execute the sentence after Gomez's conviction was upheld by the Intermediate Court of Appeals. But the justices ruled that Town had the authority to stay the sentence and his action wasn't a flagrant abuse of his judicial discretion.

GOVERNOR'S DECISION

Once the DPS director, Clayton Frank, adds his comments to the parole board's recommendation, the Gomez file will be given to the state Attorney General's office, which will conduct its own investigation and make its own recommendation to the governor, according to Otani. Lingle has a variety of options, including issuing a full pardon, conditional pardon or rejecting the request altogether.

A decision could be weeks away, depending on how quickly the rest of the process moves.

A Lingle spokesman declined comment because Gomez's pardon request has yet to reach the governor's office.

Even though he has a felony conviction, the Army has gone to great lengths to try to keep Gomez in the service and out of prison. In some other cases involving serious domestic violence offenses, the military has booted the abusers from the service.

Yet Gomez's past and current commanders, including when he served in the Hawai'i Army National Guard from 2003 to 2005, have written to the court and parole board in support of his pardon.

Army Capt. Javier Cortez-Perez, in an October 2007 letter, said he served as Gomez's supervisor in New Jersey for the past 10 months and described Gomez as one of the best soldiers and noncommissioned officers Perez has commanded. "His character and personal commitment to accomplishment of the mission and to the nation (are) unparalleled," Cortez-Perez wrote.

Gomez's supporters also have cited the soldier's numerous commendations and awards, including those for good conduct and expert marksmanship with machine guns and rifles.

2004 DOMESTIC DISPUTE

Gomez's conviction stemmed from a dispute he had with his then-wife, Sherly Gomez, in May 2004 just days before he was scheduled to graduate with his police recruit class. He later resigned that post.

At trial, Sherly Gomez testified that her husband became enraged after she kissed a friend on the cheek at a public parking lot. He confronted them and threatened to shoot both of them, the wife testified. Later at their 'Ewa Beach home, Gomez thrust a gun to her neck, causing a cut, and put the gun barrel to her forehead, according to court documents detailing her testimony. He also choked, punched and kicked her and threatened to kill her if she ever reported what happened to authorities, the documents say.

Gomez was found guilty of terroristic threatening and abuse of a family member. Five other charges were dismissed.

Days after the gun incident, Sherly Gomez sought a restraining order against her husband. Based on an agreement between the couple, online court records show, a Family Court judge issued a 51-year protective order, a length of time that is virtually unheard of here in domestic abuse cases.

The following year, however, a judge dissolved the order at Sherly Gomez's request, records show. She could not be reached yesterday to comment on her ex-husband's case.