Thursday, January 15, 2009

Musings: Kanaka vs Babylon

I passed through blowing mist and then a full-on squall on my way to the Lihue courthouse this morning, but when I saw a bright rainbow shining over Babylon, I figured things were going to be alright.

And they were. District Court Judge Trudy Senda dismissed trespassing charges against four of the guys arrested following an attempt last Aug. 7 to stop Joe Brescia from building his house atop burials at Naue. Charges also will be dropped against the other two who were arrested. It’s unclear what’s going to happen to the two men who have not yet been served with warrants.

Trial on the case was set for next Thursday, but attorneys Peter Morimoto and Dexter Kaiama were in court this morning defending motions to have the charges dismissed on constitutional grounds and insufficient evidence.

In the end, deputy prosecutor Justin Kollar, who was obviously anxious to avoid a trial, joined Peter and Dexter in stipulating to some rather dramatic findings of fact and conclusions of law that Judge Trudy deemed were “reasonable and appropriate” to grant the motions to dismiss.

The findings of fact stated that the defendants had pursued all the administrative remedies available to them to malama iwi kupuna — take care of ancient burials — on the property, but the administrative process had failed them. It states:

As a result of the failure of the administrative process, Defendants, believing that further desecrations were imminent, were compelled to occupy the property on August 7, 2008 to malama iwi kupuna.

The conclusions of law were based on the “choice of evils defense” established by State v. Marley, which held that defendants are justified in violating the law so long as there is no alternative available that does not involve violating the law, the harm to be prevented is imminent and the defendant’s actions are reasonably designed to actually prevent the greater harm. It states:

In this case, defendants (1) did not have any alternatives available on August 7, 2008 due to the failure of the administrative process, as subsequently recognized by the 5th Circuit Court, (2) were acting to prevent imminent harm to the iwi kupuna at the property and (3) acted reasonably to prevent further harm by peacefully placing themselves between construction and iwi kupuna.

“My main thing is that we are decriminalized,” said defendant Andre Perez of Oahu. “We walk away from this thing with dignity. We know who the real criminals were that day.”

The prosecutor’s office earlier had offered to reduce the charges to second-degree trespassing, but the defendants balked. “I’m not going to agree to something like that because I'm not guilty,” said Andrew Cabebe of Kauai. “I know in my heart I’m right.”

Still, Judge Trudy made it clear that she wasn’t giving the guys carte blanche to occupy the property, noting that “this isn’t a precedent-setting ruling in this case. These stipulations are limited to the allegations of Aug. 7 only.”

The Naue defendants weren’t the only kanaka smiling in Babylon today. I also ran into attorney Dan Hempey, who had just gotten charges dismissed against Titus Kinimaka, who had been cited for running a surf school without a county license. But as Dan pointed out to the judge, the county ordinance stated that only those without licenses could offer commercial services in county parks. “I’m going to have to take it literally,” Judge Trudy said in dismissing the charges.

I imagine that bit in the ordinance will be revised — eventually. How long do you suppose it takes the county to get around to fixing stuff like that? And do they employ proofreaders? In the meantime, Titus can keep on teaching, and as Dan noted, surfing is about as Native Hawaiian as you can get.

Dayne Aipoalani, leader of the Kingdom of Atooi, was also in court today and had charges dropped against him, although I’m not sure what the alleged offense was. Like others who challenge the Western system, he ends up spending a lot of time in court extricating himself from it. He’s still facing trial for charges stemming from the Aug. 26, 2007 protest over the Hawaii Superferry.

Interesting, that of all the people arrested, only Dayne and Robert Pa, two kanaka, are still being prosecuted. Everybody else got off. Should be interesting to see what Hempey has up his sleeve when he takes that case to trial as Dayne's court-appointed attorney.


Andy Parx said...

What a bizarre ruling. I heard it third hand yesterday and assumed someone had misunderstood. Trudy can say it doesn’t set any precedent all she wants but just like in the Superferry blockade apparently civil disobedience in support of the rule of law (a bit of an oxymoron) is ok. Funny that Trudy still follows protocol when someone pleads “sovereign” even though the overthrow, annexation and statehood chain of events were done illegally and based on theft.

Talk about your situational ethics.

Anonymous said...

RE Dayne Aipoalani, impersonating a police officer was a charge at one time...maybe thats the one which is still pending? the county easily - easily - can meet its burden on that one...if its dropped or reduced its a gift (i like the guy well enough myself, for the record)

i wonder if next time that landowner will bring civil charges

otherwise, nice and informative blog post!!

Joan Conrow said...

The charges still pending for Dayne related to the Superferry protest are impersonating a police officer, trespassing and interfering with government operations.

I'm not so sure the county can meet its burden on the impersonation charge, which maintains a person must be attempting to impersonate a KPD officer. Dayne, on the other hand, made it clear with his badge that he was a marshall with the Kingdom of Atooi.

As for the "landowner" Brescia, he does have a civil suit going not against these particular men, but others involved in the burials issue. It's set for trial Jan. 26.

Anonymous said...

...justice served today. Thank you, Joan, for following this burial case so carefully. and yes, surfing is about as Hawaiian as you can get.

Anonymous said...

Whatever you believe about Atooi; How can flashing a badge that says Kingdom of Atooi and saying "I'm a Federal marshall with the Kingdom of Atooi" be morphed into impersonating a Kauai Police officer?

I'm making my kid throw away the plastic police badge he bought at Wal-Mart. Don't want KPD charging him with a felony.

Anonymous said...

Yah, the gate guards should have said: "Go sell crazy somewhere else. We're all full up here."

Anonymous said...

"I'm not so sure the county can meet its burden on the impersonation charge"

i hear ya. some of the HRSs are pretty inspective

a "fake" badge and holding it out as "legit" is really all one need do

for starters, consider:

"710-1016.8] Presumptions. Any person other than a law enforcement officer, who wears the uniform or displays the badge or identification card of a law enforcement officer, or who wears a uniform or displays a badge or identification card resembling the uniform, badge or identification card of a law enforcement officer, or a badge or identification card purported to be a law enforcement officer's badge or identification card, shall be presumed to be pretending to be a law enforcement officer. [L 1987, c 130, pt of §3]"

but again to be clear - aint my job to bring the hammer down on the guy, im just sayin its not a "hard case"

still, without a gun i believe its a misdemeanor, so not the end of the world. plus the cops and others here do exercise "discretion" (to put it diplomatically) so maybe they will let it slide, and i can think of a few legit reasons why they would

but thanks for the info on the landowner civil suit. interesting

Anonymous said...

Good factual coverage, Joan. Thanks. I like your related piece over at the Hawaii Independent even better.

Andy Parx said...

Having read the Independent article I think we all need to thank Shaylene Iseri-Carvalho. She just about said she would drop the charges during the campaign and it’s nice to see a politician keep a promise. And it’s good to see a judge so ignorant of politics that she was “surprised” by it.

Anonymous said...

What I don't understand - and maybe it's my ignorance of Hawaii crim procedure - is why the prosecution couldn't just "drop the charges" - decline to prosecute - instead of shoehorning it into a convoluted theory that really doesn't apply.

Anonymous said...

it aint crim pro you are askin about

its hawaii political pro

(my guess)

anyways, i heard from this kid (attorney) from oahu that the courts in kauai are viewed as regularly not following basic civ pro / rules of evidence

that would freak me out a bit i think

Andy Parx said...

Because Kaua`i prosecutors do not grandstand- or call press conferences- or even answer questions half the time for that matter. I can’t ever remember it happening. Plus they couldn’t be seen by the state to be anything less than harassing these guys to the very end.

Anonymous said...

Well - the courts' approach to procedure is different than the Prosecutions' approach to public statements. Nevertheless, I would agree with Andy that the prosecution here is tight-lipped. And from my observation, the judiciary statewide seems to have a mind of its own.

Anonymous said...

That's some marketing tool: Yeah, I built this house on a burial site and Hawaiians hate me, but the Klan and the National Front pay top dollar to stay here. You wouldn't believe what bigots will do to irritate "others". C'mon down and bring your sheets.

Joan Conrow said...

Thanks to all those who expressed appreciation for the post.

Charley wrote: "What I don't understand - and maybe it's my ignorance of Hawaii crim procedure - is why the prosecution couldn't just "drop the charges" - decline to prosecute - instead of shoehorning it into a convoluted theory that really doesn't apply."

It may just have something to do with "saving face."

Anonymous said...

Nice story in the independent, and mahalo for the great news. Just wanted to let you know, nothing has been happening at the iwi site, no work, no materials on site, and the black fencing was blowing quite alot. no more building , except next door, where they are trying to get the house up in record time...maybe there will be justice after all

Anonymous said...

interesting posts. thank you

"judiciary statewide seems to have a mind of its own."

-- elaborate pls. i hear, for instance, that HI is a good example of where - if you really want a serious court - you need to run over to fed ct

Andy Parx said...

“next door, where they are trying to get the house up in record time”.

Sounds suspicious- like they’re trying to build a vacation rental before the inspection and then try to claim it was always there- or at least there before the law was passed. You can check if it is on the county web site (or so they promised at Wednesday’s council meeting) by tax map key or address if it’s on the list of applicants for use permits. Some may not have been released yet. If the house is on the list, construction should be reported. Caren Diamond or Barbara Robeson may be able to help you – or it may be one that they are aware of.

awolgov said...

There have been some some severe ʻirregularitiesʻ at the prosecutors office in the last few years.
People get charged, it gets dismissed, a warrant goes out, they get arrested again, then the charges are more severe, they get dismissed again, another warrant goes out, another arrest...each time the defendant thinks heʻs in the clear and doesnʻt understand why heʻs being arrested again...and each time the bail gets higher.
And this hit and miss to try to get it right (because THEY DONʻT KNOW HOW) can stretch on for years.
Thatʻs how theyʻve been running the pros. office. Real confused, maybe drunk in law school.
But, mostly, disgusting and criminal to be playing with peopleʻs lives like that-civil rights? Forget it.
Shaylene has got some house cleaning to do and thatʻs an understatement.