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.
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.