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Judge tells Kanahele jury: Keep deliberating

Despite an impasse and defense protests, she orders jurors to press on

Honolulu Star-Bulletin
Tuesday, October 31, 1995, page A1

By Linda Hosek

A federal judge today told jurors they have a duty to try to reach a verdict in the trial of sovereignty activists Dennis "Bumpy" Kanahele and Gordon Kaaihue.

Judge Helen Gillmor said jurors, who declared yesterday that they were at an impasse on the two felony counts against Kanahele, should not hesitate to change their opinions during future deliberations.

But she also said as she read from federal appellate instructions that they shouldn't change an honest opinion "for the mere purpose of returning a verdict."

Jurors submitted the impasse communication after meeting for about a day, saying they were unable to agree on a verdict against Kanahele, leader of the self-proclaimed Nation of Hawaii.

Hayden Aluli, Kanahele's attorney, urged Gillmor to declare a mistrial and objected to her ordering the jury back to deliberate, calling the practice "coercive."

Aluli said a mistrial was the second-best thing to an acquittal and said most jurors ordered to keep deliberating return with a verdict.

"I'd rather have a bird in the hand," he said this morning, adding that he didn't know which way the jurors were leaning.

Sidney Quintal, Kaaihue's attorney, wanted Gillmor to seal the verdict jurors reached in the charges against his client. He said he believed that jurors had acquitted him.

But he also said jury instructions were the most appealed issue in trials and that Gillmor played it safe by not sealing one count and keeping the remaining two open.

Les Osborne, assistant U.S. attorney, wanted jurors to continue to try to reach a verdict, adding that about a day of deliberations was not much for a three-week trial.

The government has charged Kanahele and Kaaihue with interfering with a police officer trying to serve a warrant in January 1994 on Nathan Brown, a federal fugitive evading a 78-month sentence for tax fraud.

Federal officials also charged Kanahele with harboring Brown and obstructing federal marshals in their pursuit of him three months later at Kanahele's Waimanalo home.

If convicted, Kaaihue could serve one year and Kanahele nine years.

If Gillmor had declared a mistrial, Kanahele, who has been in custody since his August arrest, may have been released, Aluli said. "He wants to go home tonight and do tricks and treats with his family."

Kaaihue, free on $1,000 bond, also said he wanted the trial over and said he believed the evidence showed he was not guilty. He distributed a statement outside the courthouse this morning, thanking the jury.

But he also said they had heard only half the case, saying he and Kanahele had not been allowed to explain "our side concerning our cultural and political beliefs."

Gillmor had ruled that she would not allow jurors to hear sovereignty defenses in the case against sovereignty activists. She had said she would rule on sovereignty questions, but would not allow jurors to hear the debate.

Aluli said he believed jurors reached an impasse because they were confused by jury instructions that did not permit Kanahele to use self-defense as a defense in the felony charges.

Kanahele did not testify, but Aluli said in opening statements that Kanahele did not hear the two U.S. marshals identify themselves and did not want to let strangers on his property.

Aluli also said two witnesses provided evidence that Kanahele acted in self-defense. The witnesses attending a June meeting with Kanahele and federal officials and testified to what Kanahele said.

But Gillmor ruled that the testimony of the witnesses was hearsay and did not qualify as evidence.

She also agreed with Osborne's argument, based on U.S. Supreme Court decisions.

He said a U.S. marshal in hot pursuit of a federal fugitive may enter onto the property of a third party to make an arrest.

He also said that the law did not require that the property owner know the identification of a marshal.

In a Friday communication, jurors asked: "Does the last paragraph (of the instructions mean we exclude facts and evidence presented, because it appears the instruction is saying we have to allow anyone to enter our private property because they may be marshals?"

The instruction said the government need not show that the defendant had any intent to injure the U.S. marshal at the time of the alleged action.

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