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Turmoil surrounds Kanahele mistrial

Juror suspected of misconduct; jury tampering question raised

The Honolulu Advertiser
Wednesday, November 1, 1995, page A1

By Mark Matsunaga and Ken Kobayashi
Advertiser Staff Writers

The federal trial of Dennis "Bumpy" Kanahele ended abruptly yesterday when U.S. District Judge Helen Gillmor declared a mistrial because of the jury's impasse, one juror's misconduct and a suggestion of jury tampering.

Assistant U.S. attorney Les Osborne said there was "absolutely no doubt at all" that the government will try the case again. A hearing to set the date is scheduled this afternoon.

Kanahele's attorney, Hayden Aluli, said he will seek to have the charges dropped because the mistrial was declared over his objections.

Aluli said Gillmor's ruling was "clearly an abuse of discretion" that ended the case without "sufficient reason."

Kanahele - who is head of the self-proclaimed Nation of Hawaii, which says it is independent of the federal and state governments - was charged with harboring a federal fugitive, convicted tax protester Nathan Brown, and with foiling two 1994 attempts to arrest Brown.

Gordon Kaaihue, head of the Nation of Hawaii's "peace force," was a co-defendant on one count, a misdemeanor.

Yesterday, two jurors said the jury had agreed to acquit Kanahele and Kaaihue on that count, but was deadlocked on the other two felony charges against Kanahele. Another juror said a majority favored conviction.

Kanahele remains in Halawa prison, where he has been held without bail since he was secretly indicted and arrested on Aug. 2. Aluli will attempt to have him released on bail pending the next trial.

Osborne, who prosecuted the case, said the government will oppose such a move because Kanahele is "a danger to the community."

Kanahele has pledged that he's nonviolent and says he was singled out for prosecution because of his activism for Hawaiian independence.

Gillmor, on her first anniversary on the federal bench, declared the mistrial only a few hours after she had ordered the jurors to reconsider their positions in hopes of breaking their impasse on two of the three counts against Kanahele.

The jury sent her its fourth question yesterday morning: "Can we make a decision using a law from the Constitution of the United States and from the Bill of Rights (Article IV)?"

The Fourth Amendment is the one that prohibits unreasonable searches and seizures by government.

The jury's question heartened Aluli, who had claimed that Kanahele was only acting to protect his property against an unknown intruder when he blocked deputy marshal Lawrence Tice from chasing Brown onto Kanahele's property.

Osborne said, "It's very interesting ... when one of the parties claims to represent a sovereign state which renounces the Constitution of the United States and now wishes to use that Constitution as a sword."

Gillmor set a hearing for 1:30 p.m. to discuss how to respond to the jury's question. But when the hearing finally began, more than a half-hour late, Gillmor revealed that the question apparently stemmed from some research done by one juror, Robert DeCosta, on his own in the federal court's law library one floor below the courtroom.

Librarian Patricia Butson said DeCosta asked to see "Article IV of the Bill of Rights" and checked out a thick law book on the Constitution for about a half-hour that morning.

Gillmor's instructions to the jury at the start of the trial had included standard language warning the jurors not to conduct any research or investigation into the case beyond what they had heard and seen in the courtroom.

Osborne, Aluli and Kaaihue's attorney, Sidney Quintal, debated how to proceed.

Then Gillmor dropped a bombshell, saying that at lunchtime one of the jurors had approached the deputy marshal who was shepherding them and asked "whether we've had any problems with jury tampering" and whether it had been serious.

Gillmor said that when she learned of this, she questioned the marshal privately in her chambers.

She indicated it was unclear whether the juror's questions were harmless or something more than that. Without elaborating, she said it would be impossible to question that juror without a mistrial.

Osborne and Aluli said the tampering revelation took them by surprise, and they had no further information about it.

Osborne said, "Jury tampering is a crime," and he speculated that Gillmor decided not to question the juror out of concern for his rights against self-incrimination.

An investigation was expected to begin.

Osborne said, "It's unfortunate that because of outside difficulties, the jury was unable to complete its job. But in view of the outrageous events that occurred, the judge had no choice but to declare a mistrial."

Aluli said he will be reviewing whether his client can be retried because it was the court that declared the mistrial over the defense objections. Another trial, he said, might violate his client's constitutional rights against double jeopardy or being tried twice for the same offense.

Aluli initially wanted a mistrial when the jury reported Monday it had reached an "impasse" on the two counts against his client. He said the panel's questions yesterday "showed me that the jury was really a smart jury and could have been possibly leaning toward the defense."

Quintal, Kaaihue's attorney, had asked Gillmor to have the jury return a verdict on the one misdemeanor count in which Kaaihue and Kanahele were both charged, but Gillmor declined.

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