By Linda Hosek

The defense for Dennis "Bumpy" Kanahele wants to subpoena jurors in Kanahele's mistrial after reading an unsealed transcript that was used to support the mistrial.

Hayden Aluli, Kanahele's attorney, said the transcript did not suggest jury tampering, a concern which had been cited, and provided no reason to declare a mistrial.

"I need to subpoena witnesses to show that the jury was deliberating and was as happy as clams," he said. "I want a record of what was going on when the court declared a mistrial."

U.S. District Judge Helen Gillmor yesterday had agreed to unseal the transcript of the marshal's testimony.

The government has accused Kanahele of harboring a fugitive and interfering with serving a warrant on the fugitive. Gillmor rescheduled Kanahele's new trial to Jan. 23.

She declared a mistrial Oct. 31, in part because of concerns of possible jury tampering. she had cited testimony she took in her chambers of a federal marshal, who said that a juror asked him if he had seen cases of jury tampering.

In the transcript, the marshal said:

"And he (the juror) asked me - I believe he asked if it was serious - was it a serious offense, and I said absolutely. As far as we're concerned, that and tampering with witnesses are tow very serious offenses in the judicial system, and it's dealt with very harshly. And it was really kind of dropped after that.

The marshal also said that on that same day, a couple of people pointed at jurors as they ate in the cafeteria.

"I'm appalled at how the trial was terminated," Aluli said.

The juror who asked the question was the same one who may have violated jury instructions by seeking information from the federal law library. Gillmor told jurors not to do their own research.

Aluli also said Gillmor should have included him and the prosecution when she took the marshal's testimony.

Aluli has alleged that Gillmor improperly declared a mistrial and that the court should dismiss the indictment against Kanahele because it can't retry the same defendant twice for the same charge.

Gillmor ended yesterday's hearing prematurely after Aluli asked several times to make his point orally in court. She had told Aluli to put his concerns in writing.

Aluli said he will appeal if Gillmor denies his request to allow Aluli to interview jurors, saying such information was not relevant in deciding a motion to dismiss Kanahele's indictment.

She said she was concerned about picking a new jury if the public fears jurors will be pressured. "The privacy interest of jurors is paramount," she added.

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