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The Kanahele Case

July 13, 1998 - Kanahele freed from restriction



On February 5, 1998, Pu`uhonua Dennis "Bumpy" Kanahele was sentenced to four months in prison, but he had already served all but seven days while awaiting trail without bail in 1995. He was also fined 500 dollars and ordered to spend another four months under restrictive conditions with an electronic monitoring device around his ankle. The federal government's original charges could have resulted in up to ten years of prison for Kanahele, but instead he has been able to remain in his community as an active voice for Hawaii's freedom, and the government's abusive political prosecution has finally come to an end.

On July 13, 1998, the government's monitoring device was finally removed, almost three years after his initial arrest, and Kanahele is able to resume his normal life, including the peaceful political pursuit of Hawaiian independence.



Recent events:

Background

Pu`uhonua Dennis "Bumpy" Kanahele and Gordon Ka`aihue, outspoken activists for Hawaiian independence, were indicted and arrested on Aug. 2, 1995, by United States federal marshals. Kanahele the was held without bail for over three months, widely considered to be a political prisoner.

Kanahele is the Head of State of the newly restored Independent & Sovereign Nation-State of Hawaii, appointed in 1994 by the body of Hawaiian elders who serve as the provisional government according to the Jan. 16, 1994, Proclamation of the Restoration of Independence.

Kanahele and Ka`aihue's trial began on August 11, 1995.

On Tuesday, October 31, a mistrial was declared by presiding judge Helen Gillmor under highly unusual circumstances.

For a detailed legal analysis of this trial, please see THE SENSE OF JUSTICE AND THE JUSTICE OF SENSE: NATIVE HAWAIIAN SOVEREIGNTY AND THE SECOND "TRIAL OF THE CENTURY" by Prof. William H. Rodgers, Jr., published in the Washington Law Review.

Unable to convict the first time, the government planned to retry Kanahele and Ka`aihue.

On Nov. 13, 1995, Judge David Ezra finally ruled that Kanahele should be released from prison, under restrictive conditions at a "halfway house," pending future court actions.

On Jan. 22, 1996, Judge Helen Gillmor denied a defense motion to dismiss the case based on double jeopardy. The second trial was postponed pending appeal of the dismissal motion to the Ninth Circuit Court.

On Feb. 13, 1996, Judge Helen Gillmor allowed Mr. Kanahele to move out of a halfway house and return home, but under highly restrictive conditions. He was not allowed to travel anywhere else in Waimanalo (including Pu`uhonua O Waimanalo Village, the sovereign community of which he led the establishment), he was required to wear an electronic monitoring device around his ankle, he could not have more than 5 visitors at any one time, and could not do business or politics out of his home, along with other conditions, persecutions which continued based on Kanahele's political beliefs--remiscient of 'banning' under South African apartheid.

On Dec. 12, 1996, the Ninth Circuit Court issued a ruling denying Kanahele's motion for dismissal of the case ( See Court Rejects Kanahele's Request To Have Charges Dismissed, The Maui News, December 12, 1996), and in May the Supreme court refused to hear an appeal of the motion.

Kanahele's second trial was set for Sept. 16th, but he chose instead to make a plea agreement, pleading guilty to a misdemeanor while the government dropped two greater charges.

Kanahele's co-defendent Gordon Ka`aihue was acquitted by a jury on September 17, 1997.

Below is:

Background

Pu`uhonua Kanahele was indicted and arrested on Aug. 2, 1995, charged with three counts related to allegedly interfering with the arrest of Nathan Brown, a Native Hawaiian activist and tax protester who was considered a fugitive by the federal government.

At the first detention hearing following his arrest, Aug. 4, Kanahele was denied bail, with the prosecution claiming that he was a "danger to the community" and a "flight risk." At an appeal hearing the following week, Aug. 9, character testimony and dozens of letters were submitted on his behalf from well-known community leaders, Native Hawaiian organizations, and international bodies, testifying to Kanahele's credibility and non-violent commitment, and calling for his release. Cash and land were offered as bond. Several Hawaiian elders signed affidavits that they would take his place in prison to secure his release. In spite of these measures, the new judge upheld the denial of bail. An appeal was filed with the Ninth Circuit Court in San Francisco, and a panel of three judges, in a split decision (2-1), again ruled to deny bail. Not until after a mistrial was declared was Kanahele finally released, under restrictive conditions, after four months of imprisonment as an innocent man.

This case was clearly a political prosecution, and Mr. Kanahele has been apolitical prisoner, a prisoner of conscience. The National Council of the Churches of Christ, USA, Interfaith Prisoners of Conscience Project extended their support to Kanahele as a prisoner of conscience, along with the United Church Board for Homeland Ministries. Many letters to the editors appeared in local papers calling for Kanahele's release and stating opposition to the government's repressive actions. The editor of the Honolulu Star-Bulletin also called for his release in an editorial.

Kanahele is clearly not perceived as a danger by the community, just by the federal government, to whom he is a danger only to the extent that he tells the truth about their illegal occupation of the Hawaiian archipelago.

The charges against Kanahele (which would usually not warrant denialof bail) are for hindering the arrest of a Native Hawaiian taxprotester, Nathan Brown, who was deprived of land by the federalgovernment in violation of an agreement, and then filed tax returnsclaiming that he did not owe taxes as a sovereign Hawaiian due toAmerica's overthrow of his government, which was later acknowledgedin Public Law 103-150. These chargesagainst Kanahele came over a year and a half after the allegedincidents took place, but just two weeks after federal judges wereserved papers by the Nation of Hawai`i putting them on notice forongoing human rights violations against the Kanaka Maoli - NativeHawaiian people. The prosecution denied that the charges are relatedto the notices, but then cited them as reason for holding Mr.Kanahele without bail. Judge Kurren, who first ruled to deny bail,had been served with the Nation's notices, and stated that heconsidered it a threat. But Judge Gillmor, who upheld Kurren'sdenial of bail, also denied a defense motion that Kurren should haverecused himself, saying that although the judge considered thenotices a threat, it did not bias his judgment.

Mr. Kanahele's prosecution is considered direct suppression of the inherent sovereignty of the Kanaka Maoli people, and continued deprivation of their right to self-determination, which the United States acknowledged in its 1993apology for the illegal overthrow of the Kingdom of Hawaii in 1893. Mr. Kanahele denies the United States' jurisdiction in Hawaii based on historical fact and law, but even under the American judicial system this is ablatant violation of rights and justice. Given the international nature of the United States' admitted crimes against the Hawaiian people and nation, however, this political prosecution of the elected head of state of the newly restored Hawai`i Nation is a grave violation of international principles and conventional and customary international law.

To put some perspective on the reality of the situation, Professor of International Law Francis A. Boyle's affidavit to the court, which details the recent events which give the Nation of Hawaii the legal foundation for independence, states: "Upon the adoption of the Constitution by the citizens of the Nation of Hawaii, Mr. Kanahele became Head of State of the Nation of Hawaii. In this capacity, Mr. Kanahele is entitled to receive all the privileges and immunities, respect and deference, that must be accorded to a Head of State as required by the general principles of public international law."

Mistrial declared, prosecution continues

The trial of Pu`uhonua Kanahele ended when Judge Helen Gillmor declared a mistrial on Tuesday, Oct. 31. This historic and unusual case came to an end which is anything but conclusive. The government stated that it intended to retry Mr. Kanahele and co-defendent Ka`aihue. The defense attorneys, Hayden Aluli (for Kanahele) and Sid Quintal (for Ka`aihue), sought to have the charges dismissed on the grounds that a retrial would violate the defendents' rights against double jeopardy.

The end of the trial came amid several unusual circumstances:

First, the jury sent a message to the judge on Friday, October 27, after several hours of deliberations, showing their concern over the instructions they had been given, asking if they were to "...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?" Part of the defense argument had been that the government failed to prove that Kanahele knew that the person he stopped from entering his property was a federal marshal, who had gotten out of an unmarked car wearing an aloha shirt, and presenting no identification as he ran for Kanahele's gate. But the judge instructed the jury that Kanahele did not need to have known it was a federal marshal he was stopping to be guilty of the crime, and the jury obviously felt troubled by this instruction, indicated by the nature of their question.

Then the jury sent a message out Monday, October 30, after a day and a half of deliberations, that they were at an impasse on two of the three charges.

Then, after being instructed to continue deliberating, it was learned Tuesday, October 31, that one juror had gone to the law library in the court building and checked out a book for a few minutes on the United States Constitution, asking questions of the librarian about the Fourth Amendment, regarding illegal search and seizure. This may have violated the judge's instructions that the jury was not to do any research into the case on their own, but indicated the concern felt about the jury instructions as they had been given, relating to the abuse of power by the government. This same juror had possessed a copy of a "Jury Rights Handbook" which he showed to the other jurors. The jurors sent out a message Tuesday asking if they could use the U.S. Constitution as a basis for their verdict, but did not receive an answer, and were instead instructed to halt deliberations.

Finally, the judge announced that one juror had questioned a U.S. marshal (other than the marshal charged under oath to prevent anyone else from interacting with the jury regarding the case) in a general way about jury tampering during the deliberations.

Based on these circumstances - the impasse that had been reached, the research by one juror into the U.S. Constitution, and the vague suggestion of jury tampering - the judge declared a mistrial late Tuesday, over the defense's objections.

Following the declaration of mistrial, jurors stated to the media that they had voted to acquit Kanahele and co-defendent Ka`aihue on Count 1, a misdemeanor related to a Jan. 27, 1994 incident, but the acquittal was not allowed to be delivered.

The jurors also stated that no amount of deliberation would have brought a unanimous verdict on Counts 2 and 3, felonies which Kanahele faced alone related to a March 16, 1994, incident.

Despite the fact that the judge precluded any argument of sovereignty, mistake of law, self-defense, or the argument that Kanahele was unaware of the identity of the marshals, from formally going to the jury, the government was unable to get a conviction on even one count!

But then they sent Kanahele and Ka`aihue back to square one so they could take another shot at them with a new jury.

Motion to dismiss on double jeopardy

On December 29, 1995, Judge Helen Gillmor heard a defense motion to dismiss the charges against Kanahele based on double jeopardy. Gillmor received written supplementary material until January 3, 1996. On Jan. 22, Gillmor denied this motion.

Kanahele's trial had been rescheduled to begin April 23, 1996, but was postponed indefinitely pending the appeal of the dismissal motion with the Ninth Circuit Court in San Francisco.

During the Dec. 29 hearing, Kanahele's attorney Hayden Aluli sought to uncover more information regarding the issues surrounding the mistrial, primarily the exchange between a juror and a marshal about 'jury tampering' which the judge cited as her primary reason for being unable to continue the trial.

The day of the mistrial, Oct. 31, Judge Gillmor received a call from US Marshal Anne Kent that such a conversation had occured. (Marshal Kent's statements to the grand jury were one of the primary reasons for Kanahele's original indictment.) The judge interviewed the marshal who was involved in the incident, and shortly thereafter called the mistrial. On the way to lunch that day, the juror (the same one who sought out information at the court library on Amendment IV of the US Constitution regarding search and seizure) allegedly asked the marshal who was escorting them a question about whether they had much trouble with jury tampering and if it was serious. The marshal responded and engaged in brief conversation on the subject. However, a different marshal had taken the court's oath to take charge of the jury, swearing that he would allow no one to speak to the jury. That marshal was in the courtroom guarding Mr. Kanahele at the time that another marshal allegedly engaged in conversation with a juror on the subject of tampering which caused the case to be declared a mistrial. US marshals were the government's key witnesses in their prosecution, and this same office violated a sworn oath and caused the mistrial after the jury indicated it was not ready to convict! As Aluli stated, it was the fox guarding the henhouse. If anyone tampered with the jury, it was the marshals themselves, and it is their credibility which is in question...

Aluli argued these points before the judge, and asked her if the defense would be allowed to interview the marshal, but he had been transfered out of Hawaii.

Requests to interview the juror involved were also denied by the judge, so there is no way to confirm whether in fact the juror ever asked a question and if such a conversation ever took place.

Aluli also asked the Judge Gillmor to recuse herself from the hearing on this motion, being too close to this particular situation to make an unbiased judgment. She denied his oral motion.

Statements of Support:

Prof. of International Law Francis Boyle's affidavit to the federal courts

International Indian Treaty Council letter to President Clinton.

National Council of Churches Interfaith Prisoners of Conscience Project letter excerpts

Ho`ike I Ka Pono - Witness for Justice: Hawaii church and community leaders call for Kanahele's release

United Church Board for Homeland Ministries letter

excerpts from some of the many other letters written on behalf of Mr. Kanahele

Letters to the Editors in Hawaii's papers (updated Nov. 10)

Commentary by Office of Hawaiian Affairs Trustee Moanike`ala Akaka

Senator Daniel Inouye on political imprisonment

Related news articles

(articles are chronological - newest articles at bottom of list):

The Trial Begins:

Mistrial:

Kanahele's Release:

The Plea Agreement and Sentencing

Related news items may also be found at Ka `Upena Kukui: "The Net of Light" - Hawai`i News, Internet Edition

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