Defendants face rough road with self-representation

  • Contributed photo

    Allan Parachini

The ejectment (translation: “eviction”) trial involving the two leaders of a group of mainly Native Hawaiians who have occupied the grounds of the former Coco Palms Resort in Wailua meandered through its third full day Friday.

It resumes Tuesday, when testimony might conclude and closing arguments may or may not occur. Once that’s finished, District Court Judge Michael Soong will — almost certainly — not issue an immediate ruling from the bench, but rather take the matter under submission with a written decision in the future. That could set the stage for several years of appeals.

It is unfortunately easy to make light of some of Friday’s developments, though to do only that would be a disservice to the issues that really underlie this litigation and the whole matter of whether Native Hawaiians and others now occupying part of the Coco Palms property have any right to remain there.

On Friday:

w Twice, defendant Noa Mau-Espirito — who, with codefendant Charles Hepa, is self-represented in the case — asserted that Capt. James Cook arrived in Hawaii in 1776, when the actual year was 1778. These are guys trying to present a case faithful to Hawaiian history.

w Three times, he got flustered and uttered the s-word (you know which word I mean) in open court. The first time, (“Your honor, s***.”) drew a chuckle from the judge. The next two times elicited raised eyebrows but no formal admonition.

w He seemed to lose his way on several occasions, observing at one point, “I was saying what I said. I forget what I said already,” and later, “I apologize for things being kind of messy and stuff,” and “I really cannot hold the thing on my own.” That meant, clearly, that Mau-Espirito knows by now he is in far over his head trying to self-litigate such a case.

He acknowledged as much at one point when he told the judge he had been trying to get a lawyer, who he did not identify, but who he said might join the defense table sometime later Friday. No attorney materialized and an expert in Native Hawaiian law I have been consulting suggested that no qualified lawyer is likely to touch the case now.

There is a very, very old saying in the lawyering business, which I use here with some reservations because I do not intend to belittle or demean the defendants, who to their credit undertook a court trial with, really, no idea what they were getting into. Neither they, nor most laypeople, could be expected to fully grasp the arcane process until they found themselves drowning in it.

The dictum is: “A person who represents himself or herself in court has a fool for a client.”

Mau-Espirito and Hepa reiterated on Friday what have become familiar themes. They accused the Coco Palms property owners, as well as Soong, of being complicit in war crimes and genocide. They offered as evidence a copy of the oath Soong took when he first went on the bench, with the assertion he had dishonored it. To his credit, Soong accepted it as Exhibit FF.

They continued to challenge the authority of the District Court to even hear the case, which, they contend, can only be resolved by a Hawaiian Kingdom court. But within minutes of such assertions, they argued they had been victims of repeated violations of the U.S. Constitution and Hawaii law. For good measure, Mau-Espirito accused the judge of “direct violation of human rights treaties” and suggested the case should be heard by the International Criminal Court in The Hague.

Soong has given the defendants unprecedented latitude because he knows that no judge could expect litigants in this situation to know exactly what they were doing. That said, the degree to which the defense case is an example of ragged lawyering is extreme, even by the standards of self-representation.

He allowed them, for example, to continue introducing new exhibits on Friday that the opposing side had never seen before — weeks after an agreed cutoff date. No court would permit licensed attorneys to do that without threatening contempt proceedings. Instead, Soong permitted the defense to argue for its evidence each time, and excluded few of the documents that were offered.

Coco Palms attorney Wayne Nasser, a prominent and highly experienced lawyer from Honolulu who has tried, probably, hundreds of cases, held his tongue. He could have launched a blistering series of objections that, if they’d been argued, would have left the judge no alternative but to rule against Mau-Espirito and Hepa.

In the audience Friday was Kauai County Attorney Mauna Kea Trask, one of a line of attorneys produced over decades by a family with historic ties to the Native Hawaiian community. He is as compassionate and committed an advocate as you’ll find for courts and governments taking seriously the often-ignored rights of Native Hawaiians.

So, during a break, we chatted in the hallway outside the courtroom. I asked him a question I think many people have about this litigation: What is it all about, really? His response tracked answers I have received from numerous other experts.

“This is really about social issues,” Trask said softly. “It’s about economics and about no jobs for Native Hawaiians. No opportunities. No houses.”

He agreed with literally everyone else I’ve talked to: the occupation of the Coco Palms property is primarily a broader protest about homelessness and bleak economic prospects for young Native Hawaiians, in particular.

Kauai County, Trask said, is all too aware of the real stakes at Coco Palms. It’s why the situation has been handled with delicacy. In other places under similar circumstances, the Kauai Police Department might already have descended on Coco Palms and driven the occupiers off. That, in turn, could set up a confrontation that could make “ugly” an understatement.

That doesn’t mean it will remain that way. Strictly as a matter of law, Mau-Espirito and Hepa have almost no chance of winning this case. Ultimately, Soong will almost surely have to rule against them. Which leaves everyone to wonder: Then what?

There is clear evidence that the authorities in Lihue are committed to dealing with “Then what?” as compassionately as possible. It is up to everyone involved in this controversy to try to make that real.

•••

Allan Parachini is a former journalist and PR executive. He is a Kilauea resident.

12 Comments
  1. Charlie chimknee January 7, 2018 9:33 am Reply

    For one, this is proof the court system has gotten to deep in its legal rut, where regular people cannot use the “closed” court system without using an attorney, too many of whom graduated at the bottom of their class leaving their clients double fools.

    The laws have gotten so complicated that they are out of touch with common sense and decency. In the courts it is not about truth and honesty, it is about Laws, made by a few men and women who arrogantly think they speak for all of the rest of us regardless of our differing races, colors, and creeds.

    In this case, the Pre Iniki Coco Palms enjoyed about a half century (?) of the cheapest rent and property taxes in the history of KAUAI…Coco Palms has had all The KINGS HORSES and all the KING’S MEN for over 25 years and they couldn’t put Coco Palms BACK TOGETHER AGAIN.

    Isn’t it time for the original inhabitants to put it back together again?

    After all the Hawaiian Kanaka Maole were the first humans ever, after bravely and intelligently crossing the vast expanse of much of the Pacific Ocean, to make 1st landfall in the Hawaiian Islands at the Wailua River and make the first human settlement in this isolated part of the world at what is now Coco Palms. That part of the sacred Wailua was fine, even with the modern construction of Coco Palms until an off Island Insurance company refused to pay its responsibility after Hurricane Iniki; and may well have caused great stress and demise to it’s, at that time, current owner. Mrs. Guslander?

    And now the irresponsibility that is Coco Palms is in our faces every day.

    Mao-Espiritu and Hepa are volunteering to make a change with pride instead of profit as their motive. If they should get back their Hawaiian sacred place and have good plans and motive for its future, others will come forward and work and contribute and invest in a new life for that part of SACRED WAILUA NUI where the old Coco Palms lies in Ruin.

    These young Kanaka, are not trying to take those ruins away from anyone, they are on state public land, left destitute by its former “managers”.

    All of Hawaii Nei owes allegiance to this tiny part of Hawaii as the Genesis of all Hawaii, after all it is the Jamestown of this state, this Hawaiian Kingdom and Nation that we all enjoy life on.

    These 2 young Chiefs are clearly brave and honorable, the people and the courts should give them a chance, at least as long as the profiteers have had their chance to get it out of the “ashes”. The investors who have come and gone with their millions may be violating and inviolable KAPU of the original people, the Kanaka Maole; it may be that unwritten Kapu and the Spirit of the Aina that is not allowing the return of the hotel. The next endeavor just might need to be Hawaiian.

    After all, Coco Palms is not private property, it is owned by the state of Hawaii. For over 25 years it seems no rent or taxes have been paid to the state. What’s not worth a New way of doing things.

    I for one would come and give a hand, a shovel, and a fist full of dollars to see Sacred Wailua, the Birth Place of Hawaii come back to life.

    Hepa and Mau-Espiritu are the youth of Hawaii with energy and dreams and are the descendants of the first Kanaka Maole.

    The BIRTHPLACE of HAWAII should not be allowed to DIE LIKE THIS…!

    Respectfully,

    Charles


  2. Suzan Kelsey Brooks January 7, 2018 10:08 am Reply

    Mr. Parachini states, accurately, “In other places under similar circumstances, the Kauai Police Department might already have descended on Coco Palms and driven the occupiers off. ” I submit that, in other places, the wreck of the Coco Palms would not have been allowed to remain for decades. It would have been condemned and dismantled. Then, the discussion of “What next?” would have already taken place, and the property could have been turned into something other than the eyesore it remains. It might even have been a park or other public space for use by everyone. Allowing this destroyed property situation to continue has brought the problem.


  3. Reverend Malama Robinson January 7, 2018 10:29 am Reply

    You, dear foreign writer, err in making fun of and, criticising the defendants.

    This,is,NOT A CRIMINAL CASE…..

    THIS,IS small claims,and the defendants are certainly showing evidence of having strong,counterclaims and,lawsuits against this writer and the newspapers etc for damages.
    I suggest you kindly resins your unfounded and self righteous judgement.
    MAHALO


  4. Charlie chimknee January 7, 2018 10:42 am Reply

    As a heads up, as some may not know about Jamestown…it is the first European settlement in America and survived to today as the Birth Place of America for the Euros and all who have immigrated to America since then.

    Wailua (and the location of Coco Palms) has similarities to Jamestown as the Founding Place of the Hawaiian nation.

    (Let’s not forget the Native Americans who also managed and preserved their lands of North America for more than 10,000 years before the “white man” came ashore and settled Jamestown.)

    The Hawaiians also managed and preserved their aina with respect for over a 1,000 years.

    Coco Palms could be a historic and traditional Sacred Spot as the Landing and Founding Place of all of Hawaii Nei.

    Do we really need a hotel there, albeit it has the history of the first Kauai resort…but time and the tides of salt air and the winds of fate have done their thing…maybe Coco Palms is Pau Hana…!

    Aloha,

    Charles


  5. Anon Ymouse January 7, 2018 11:54 am Reply

    If they’re essentially disputing title, why is this still not removed to circuit court?


  6. Ken Conklin January 7, 2018 4:40 pm Reply

    Allan Parachini’s essay is so kind, so gentle, so compassionate toward Mau-Espirito, Hepa, and even Judge Soong. But I believe that attitude is morally wrong. Such an attitude in general, and this essay in particular, appeal to public sympathy to tolerate behavior which is intolerable and which supports a political movement to overthrow the State of Hawaii and replace it with a race-supremacist government.

    Hawaiian activists like Mau-Espirito and Hepa are (ab)using the legal system as a weapon against the sovereignty of the State of Hawaii. They clearly announce that they do not regard the government or the courts as legitimate. They and their buddies at Mauna Kea, Haleakala, the Super Ferry debacles simply use the legal system to stop projects they dislike, even though they refuse to abide by any court decision that goes against them. People like this cause lengthy delays and enormous expense to law-abiding individuals, governments, and companies, knowing that what they are doing is destined for failure and knowing that they do not respect the process they are invoking. They are like homeless people or vandals who set up tent encampments in our parks and vandalize them, destroying plumbing and ripping out copper wires to sell for pennies. They bask in the praise of their fellow sovereignty activists who adore them for the trouble they cause and for “witnessing” for Hawaiian sovereignty.

    Yes, judges and prosecutors are sometimes kind and generous to low-income people who represent themselves instead of hiring an attorney. But when those pro se folks are using the courts as a venue for street-theatre performances in contempt for the legal system, they should be dealt with swiftly and harshly. Hold them to the same standards as anyone else. Dispose of their junk cases as quickly as the requirements of due process allow. Charge them with abuse of process and contempt of court; make them pay damages for the delays and expenses they force upon all of us.


  7. Jake January 7, 2018 5:45 pm Reply

    “This is really about social issues,” Trask said softly. “It’s about economics and about no jobs for Native Hawaiians. No opportunities. No houses.”

    Ah, yea, I would really like to see what “opportunities” are not available for “Native Hawaiians” (however you want to define the % blood quantum) . Opportunity does not equal outcome. There are other concrete reasons for high unemployment for Native Hawaiians, which leads to no opportunities, and hence no houses. It’s 2018……2017 was the “Year of being a Victim”. How about we all take some accountability and responsibility for our actions……..and inaction.


  8. Geckoman January 8, 2018 6:27 pm Reply

    Yawwwn. Is this waste of tax-payer money and wasted court time over yet? Don’t care about anyone’s opinions. Facts were presented last year – clowns arguing ownership lost.


  9. Calvin Winchell January 9, 2018 12:54 pm Reply

    This is merely a stand against a much larger problem towards Native Hawaiians and others. The corruption in Hawaii has seen lands taken, Judges violating civil rights and imposing excessive fines and prison sentences filling our jails, drugs killing thousands, and politicians (most non Hawaiians) occupying and controlling all offices. Allowing run away immigration illegal and otherwise until our lands are ruined. This is hawaii not japan and the reason Michael Soong is attempting to appear sympathetic is he fears many other Hawaiians will get involved here and this will gain the momentum it should have and force these thiefs out of lands and islands that are simply not theirs! After all, is it not the bunk laws that have caused these abuses in the first place? Laws written by white men to legally abuse and steal lie cheat Hawaiians from what is theirs! God given!
    So, if not now the reclaiming of lands and property and Hawaiian law will be implemented and unfortunately civil unrest is the only method that will get the job done! I fear great upheaval will occur across our lands until the years of wrongs are made right!


  10. Fathom January 10, 2018 2:37 pm Reply

    This Coco Palms Application — in the first link below — shows how $86 million (2/3’s of the budget) for the 12,000 sq. ft. Hyatt Resort was being raised through 172 wealthy Foreign Nationals in exchange for Green Cards and a path to U.S. Citizenship for them and their family —

    “The proposal identifies the new commercial enterprise (“NCE”) of the project as Lexden Coco Palms Loan Company, LLC, which was formed in the State of Delaware on January 31, 2014. The project is located at 4-947 Kuhio Highway, Kapaa, on the island of Kauai in the State of Hawaii. 172 immigrant investors will subscribe to the NCE as limited partners in exchange for capital contributions of $500,000 each and an aggregate of $86 million. The NCE will loan the $86 million of EB-5 capital to a third-party entity, Coco Palms Resort. The EB-5 capital loan proceeds will be used to acquire and re-launch The Coco Palm Resort as the Coco Palms by Hyatt in Kauai.”

    You can read the entire document at this link —

    http://www.cocopalmseb5.com/wp-content/uploads/2014/12/Approval_Lexden_Hawaii.pdf
    .
    As to the job creation numbers, the document in this post states that the 12,000 sq.’ Hyatt Resort will create less than 665 permanent jobs.

    On page 3, the table shows that less than 4 permanent jobs expect to be created per $500,000 loan made to Coco Palms HUI, LLC by each of the 172 foreign investors.

    This represents 664.3 permanent jobs total, but it also misrepresents the realistic numbers since a good portion of the “Food and Beverage Services” jobs are not positions hired by their resort, but instead factored in as jobs thought to be created by resort employees eating at local restaurants.

    The problem with this future calculation is that most Kaua`i resort employees eat meals provided by the resort itself, usually in a break room near the kitchen. Therefore, the numbers used in this document are calculated in ways that appear to show higher job creation potential than this Hyatt Regency development will actually provide.

    These EB-5 visas have tremendous benefits for these foreign investors. LLC’s make it easy to hide their identities from the public, In exchange for the $500,000 loan, the EB-5 Visa provides the investors with a Green Card, and a 5 year path to U.S. Citizenship for them and members of their family.

    This Green Card allows them to do business, donate to political action committees (SuperPACs), and travel freely anywhere within the United States without the the same legal restrictions normally imposed on Foreign Nationals.
    .
    And…

    Have you ever wondered why so many Foreign Nationals are investing in Hawaii’s development projects at $500,000+ each?

    This corporation says that investment in Hawaii provides wealthy investors (from foreign countries) with automatic Green Cards; for them and their immediate family. These EB-5 Visa programs also give these investors a direct path to U.S. citizenship in 5 year — as well as the ability to sponsor extended family members.

    This is a quote from their website (link below) —

    “Hawaii is an attractive location for investment. Hawaii’s mid-Pacific location provides residing companies with a presence in Asia- Pacific markets at a lower cost than major Asian capitals, while offering political stability, legal protection, and U.S. rights and freedoms.”

    http://www.goldenpacificventures.com/

    According to United States and International law, this contested land is still legally owned by the descendants of the Hawaiians who filed documented legal title claims during the Great Mahele of 1848. These lands have been passed down to these descendants through generational bloodlines. This is an undisputed fact.

    http://www.naiaupuni.org/docs/pres/mm/Ch.%205%20NHwns.%20&%20U.S.%20Law%20excerpt.pdf


  11. Manawai January 12, 2018 12:58 pm Reply

    The sad thing is that these self-styled Hawaiian activists like Hepa, Noa-Espiritu, Kekaualua, etc. actually think that a royal patent makes the land yours “forever” … EVEN AFTER IT’S SOLD! Well, that’s what happened to so many kuleana in the 1800s. The original Land Commission Awardees or Patentees, or their heirs a couple generations down, sold these parcels for KALA back during KINGDOM times. So, these uninformed activists who claim that the land is theirs forever are very misinformed. Further, to claim that land sales after the overthrow are invalid actually is entirely irrelevant to the issue.


  12. Donald Trump January 21, 2018 5:45 pm Reply

    Are they gone yet?

    No shortage of people especially in hawaii who’re convinced the world owes them something. Just sad.


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