TMT Protestor Prosecution Passes to AG’s Office; Trial Dates Set

Trial dates were set on Friday, Sept. 20, 2019, for nine of the kūpuna (elders) who were arrested and charged with obstructing a government operation in July, during the first week of the Maunakea Access Road blockage.

The blockade to prevent Thirty Meter Telescope (TMT) construction equipment from ascending Mauna Kea Access Road is now in its ninth week.

Kūpuna on the frontline of Mauna Protectors road block of Maunakea Access Road on July 17, 2019. PC: Crystal Richard

Before court proceedings began, Hawai‘i County Prosecuting Attorney Mitch Roth was withdrawn as prosecuting counsel and State of Hawai‘i Deputy Attorney General Albert Cook stepped in to handle the cases.

All 38 cases have now been turned over to the Attorney General’s Office.

Approximately 150 Maunakea Protectors showed up to support the nine kūpuna who appeared in court today, Aug. 23, 2019. PC: Darde Gamayo

Roth’s withdrawal comes after concerns were raised about a possible conflict of interest involving his son’s employment at the Jet Propulsion Laboratory, which is managed by a TMT partner institution, the California Institute of Technology.

Deputy Prosecutor Ricky Damerville said that Roth sought advice from the Hawai‘i County Ethics Commission, which, he said, resulted in no conflict of interest for Roth. However, Roth decided to step aside for now and sent the cases to the AG’s Office.

The defense counsel for each of the nine kūpuna expressed concern over the sudden change in prosecution counsel.

Damerville told Judge M. Kanani Laubach he filed the document after 1 p.m. that day declaring Deputy Attorney General Cook as the prosecutor on the cases.

Arguments against the change cited a lack of sufficient notice. The defendants’ counsel also noted that the single-page document indicated it was filed in haste, and also said the document falls far short of rules and statutes. Kūpuna counsel asked for a written motion explaining why the change in prosecution was needed.

Damerville blamed the press for initiating the conflict-of-interest allegations. An Associated Press article questioned whether or not Roth had a conflict of interest in prosecuting the cases due to Roth’s son’s employment at the California Institute of Technology, one of TMT’s partners.

Damerville defended the change in counsel, citing that under HRS 28-1, the Attorney General or the Deputy AG can appear in every criminal case the state is involved in.

Attorney Richard Wurdeman, representing Carmen Lindsey, objected to the use of statutory rights to allow the AG’s Office to step into these cases, citing a conflict of interest.

Wurdeman expressed concerns over the ability of his client to receive a fair trial after a press conference on the subject was held just days before the pending trial. Wurdeman also noted the emergency proclamation issued and then rescinded by Gov. David Ige as a concern regarding a fair trial.

He also expressed concerns about the professionalism of Attorney General Claire Connors, particularly the “extra-judicial comments” she had made during the press conference, he said. He argued that her public comments were “highly objectionable.”

Wurdeman also talked about the recent threat of a mass shooting at the Hawai‘i State Capitol and how no distinctions were made as to who was behind the threat regarding his relationship to Pu‘uhuluhulu.

According to news sources, the threat was made George Sopi of Arizona, who has no known connections to the Mauna Protectors or Pu‘uhuluhulu. But according to the FBI bulletin, he has a criminal history that includes assault, assault against a police officer and marijuana offenses, and appears to have access to a firearm.

AG Connors said in a written response that Sopi has not been arrested.

In response to more questions about the seemingly hasty filing submitted less than a half-hour before the court session was to begin, Damerville said the only reason the document was filed at all was because the court asked for it.

Judge Laubach requested the documentation because she said she wanted it to be “crystal clear” who was prosecuting the cases. She said no one was listed as a prosecutor and if no one showed up, she was ready to dismiss.

Damerville said the court’s clerks office called their office saying someone from from the Hawai‘i County Prosecutors Office needed to be in court or some paperwork needed to be filed. So Damerville filed the withdraw notice less than a half an hour before proceedings court began and was also present to represent the prosecution.

The defense team didn’t received a copy of the withdrawal document from the Hawai‘i County Prosecuting Attorney prior to the hearings due to these circumstances.

Maunakea protectors block Mauna Kea Access Road, July 15, 2019. PC: Crystal Richard

Attorney Moani Crowell, representing Tomas Belsky, also noted the lack of sufficient notice and asked for a written motion explaining the reason for the change.

Crowell said there was no opposition to the AG’s Office acquiring the cases, but argued that the last-minute filing of the one-page document was not in line with professional conduct. Her client has a constitutional right to this information, she said.

Crowell also argued that it was prejudicious to her client.

Judge Laubach said she did not see prejudice. Damerville accused Crowell of theatrics in the courtroom.

Crowell’s co-counsel objected to that comment, citing numerous laws that support their arguments.

Regarding the conflict of interest issue, Deputy Prosecutor Damerville said that there is a possibility that the AG Connors will appoint a special deputy to prosecute the cases. The decision has not been made yet, he said.

Finally, court proceedings began and nine of the kūpuna arrested on July 17, who plead not guilty on Aug. 23, were ordered to return to court for trial.

James Albertini was ordered to appear for trial on Nov. 1 at 9 a.m. in courtroom 2B.

Dr. Marie Brown was ordered to appear Nov. 1 at 10 a.m. for trail in courtroom 2B.

Tomas Belsky was ordered to return Nov. 1 at 10 a.m. in courtroom 2B.

Ana Kahoopii trail is set for Nov. 22 at 1:30 p.m. in courtroom 2B in Hilo.

Carmen Lindsey is to appear Nov. 22 at 1:30 p.m. in Hilo Courthouse room 2B.

Hawley Reese is scheduled for Nov. 22, 2019 in courtroom 2B.

Ranette Robinson was ordered to return Nov. 1 at 1:30 p.m. for trial in courtroom 2B..

Counsel asked for a continuance for Kaliko Kanaele. The judge granted the request. Kanaele is to return on Oct. 18, 2019 at 1:30 p.m. for a pretrial conference.

Edleen Peleholan. Video clip: Darde Gamayo

Edleen Peleiholani was ordered to return for trail on Nov. 1 at 1:30 p.m. in Hilo courtroom 2B.

After the date was set, Peleiholani asked to address the court.

She said she found it sad to come to court and learn of the discrepancies between defense and prosecuting attorneys.

“I find it not pono to be here under judgement of those who are not pono themselves,” stated Peleiholani.

Kupuna attorneys gather to make a statement to the press on Aug. 23, 2019. PC: Darde Gamayo

In addition to the nine kūpuna who set individual trial dates, an additional 28 people arrested for blocking Maunakea Access in opposition to TMT construction made their first court appearances.

Among the kūpuna and their caregivers were: Sharol Awai, Roberta Bennett, Gene Burke, Daycia-Dee Chun, Richard Deleon, Alika Desga, William Freitas, Patricia Greene, Desmon Haumea, Flora Hookano, Kelii Ioane, Maxine Kahaulelio, Pualani Kanakaole-Kanahele, Deborah Lee, Donna Leong, Daniel Li, Linda Lindsay-Kaapuni, Abel Lui, Liko Martin, James Naniole, Luana Neff, Deena Oana-Hurwitz, Renee Price, Loretta Ritte, Walter Ritte, Danien-Marie Trask, Mililani Trask and John Turalde.

All plead not guilty to obstructing a government operation. Pretrial conferences were scheduled for Oct. 18, Oct. 23 and Nov. 1.