Saturday, December 30, 1995
By Ken Murakawa
Misconduct by a U.S. marshal may have played a part in the mistrial of Hawaiian sovereignty activist Dennis "Bumpy" Kanahele, his attorney said in federal court yesterday while arguing to have the charges dismissed.
"Whoever was guarding the chicken house was a fox," said Hayden Aluli, referring to the U.S. marshal assigned to watch jurors during deliberations.
"In my view the only one that tampered with the jury was the marshal because he shouldn't have been talking to the juror."
U.S. District Judge Helen Gillmor declared a mistrial in Kanahele's trial Oct. 31, in part because she was told about a juror questioning a marshal about jury tampering. Kanahele is accused of harboring a fugitive and interfering with U.S. marshals when they tried to serve a warrant on the fugitive.
Aluli restated his allegation that Gillmor improperly declared a mistrial and asked the court to dismiss the indictment against Kanahele because it can't retry a defendant twice on the same charge. He said Gillmor didn't allow both sides to investigate the accusations of jury tampering before she declared the mistrial.
Kanahele, in a brief statement to Gillmor, said "I feel that this court has been biased."
"I can't see how I'm gonna get a fair trial - you being the judge. I think you're biased and I think you should recuse yourself."
Aluli wanted to know how the tampering allegations came to Gillmor's attention. Gillmor said a phone call from U.S. Marshal Anne Kent alerted her to the conversation about jury tampering. Kent was a witness in the case.
Aluli then asked Gillmor to step down from making the ruling, alleging there was an appearance of a conflict and she had been partial in her rulings against the defense.
Assistant U.S. Attorney Michael Seabright called Aluli's claims "outrageous," and suggested Aluli file a complaint with the Disciplinary Council if he had evidence of prosecutorial misconduct.
Gillmor denied Aluli's request that she remove herself from the ruling on the dismissal.
She reserved ruling in yesterday's hearing. Attorneys for both sides were given until Wednesday to file written arguments on the issue, after which Gillmor will issue a written ruling.
A second trial for Kanahele is scheduled for Jan. 23.
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