The Curious trials of Kapana Thronas-Kaho‘onei

LIHUE — The trial of a 25-year-old Anahola man acting as his own attorney ended Thursday afternoon when a jury found him guilty of resisting arrest but not guilty of the crime he was arrested for.

Kapana Thronas-Kaho‘onei has been representing himself in court since December 2017, when he decided to move forward without his court-appointed public defense attorney a year into pretrial proceedings in a separate case.

He was charged with resisting arrest in that case as well — a misdemeanor that carries up to a year in jail — but county prosecuting attorneys offered to dismiss the charge on one condition.

“What they wanted? One apology,” Thronas-Kaho‘onei said Thursday.

According to the minutes of a December 18, 2017 hearing in Fifth Circuit Court before Judge Kathleen Watanabe, Thronas-Kaho‘onei’s public defender “placed on the record that the plea offer from the state is that they’ll dismiss the charge if the defendant writes a letter of apology to the police officer.”

It was a tempting offer.

“At first, I was like, oh that’s a good deal! I was gonna take it. I was like, oh, maybe! And then I thought about it, and I talked to my parents and grandparents, and they’re like, ‘Brudda, that’s admitting that you’re wrong,’” Thronas-Kaho‘onei said. “I was like, you’re right. I did nothing wrong! This was purely their harassment.”

Thronas-Kaho‘onei has been unable to substantiate his claims that he has been targeted by Kauai Police Department officers, but intentional or otherwise, police have cited him for minor infractions at a notable rate.

In the year and a half prior to his arrest in July 2016, Thronas-Kaho‘onei was pulled over four times by police and arrested once for possession of marijuana. From February 2017 to February 2019, he was issued traffic tickets on 11 separate occasions for a variety of infractions — the majority were for delinquent vehicle taxes and not having a current safety check, registration or drivers license.

He argued the case on his own behalf, a community-college dropout in his mid-twenties, who makes a living doing odd jobs when he’s not crewing on a sailboat, battling in court against a professional prosecuting attorney with the state of Hawaii behind her. He lost. Badly.

The trial was over in two days, and it took a jury of his peers only a half hour to find him guilty. The judge gave him probation and 48 hours in jail, with credit for time served. He had already spent a day in lock up after his arrest, so the remaining jail time, he said, was just long enough to “cruise, see the ohana again, give them aloha, back out.”

A month after the verdict, Thronas-Kaho‘onei was arrested again. Police pulled him over for a missing rear license plate, and cited him for a tail light infraction and not having a drivers license — he refuses to get state-issued identification because he doesn’t recognize the state of Hawaii and believes he is not a citizen of the United States.

Again he declined to use a court-appointed attorney. Again he represented himself. Again he went to trial. The case was similar, the resisting arrest charge is the same, plus an added petty misdemeanor — third-degree promotion of a dangerous drug. But this time Thronas-Kaho‘onei had a purpose.

A question of jurisdiction

“My first defense has always been, no jurisdiction,” he explained outside the courtroom where he waited for the jury to return Thursday afternoon. “I’m not a part of the state of Hawaii.”

Thronas-Kaho‘onei said the first trial taught him a lot about the legal process and how to maneuver in a courtroom setting, but his defense in this case dealt with the state’s allegations only as an afterthought.

His central argument has become one of sovereignty. He believes his growing list of legal battles — twice he has appealed convictions to the Hawaii Intermediate Court of Appeals and plans to file a third in the next couple weeks — are about more than his criminal record.

For Thronas-Kaho‘onei, his court battle is one he fights on behalf of his people.

“How come they homeless?” he asked of his fellow Native Hawaiians, some of whom he regularly sees sleeping on the beach. “Cause they don’t know the law. They don’t know how to fight in the war that’s happening. They like fight, they like scrap, yeah. But what good is that? You gon’ be violent, they gon’ shoot you, taze you, arrest you.”

Thronas-Kaho‘onei says he is part of a generation of Hawaiian people who are beginning to understand the legal framework that has been used to erode their collective ownership of the islands.

“This is a war behind closed curtains. This is a silent war. Because it’s all happening behind courtroom doors, on paperwork. It’s not a war like before, back in the day, pure bloodshed and bombs,” he said. “So it took us some time to learn that new style. But we kinda figured it out now.”

The sovereignty defense

A growing number of Kanaka Maoli are challenging the jurisdiction of the United States and the state of Hawaii, entities they maintain have no authority over their people or their land.

For the past two years, guys like Noa Mau-Espirito, Lance Kamuela Gomes and Punohu Kekauala have been challenging the legal rights of large-scale real estate developers in the Hawaii Intermediate Court of Appeals.

Inevitably, they lose, and they expect to. The ICA has yet to recognize an appeal based on Hawaiian sovereignty. For Native Hawaiian rights activists who appeal on sovereignty grounds, the state appellate court is just a stepping stone on their way to the Hawaii Supreme Court and, eventually, the highest courts in the nation.

Thronas-Kaho‘onei says he will appeal his misdemeanor conviction with the state appellate court in the next couple weeks, and has no qualms about losing the case in the upper court. The point, he says, is “to see what they say” — to force the courts to consider the issue.

There are numerous factions within the Native Hawaiian sovereignty movement. Each person uses different tactics to appeal the case they are fighting, and sometimes there are disagreements about what the goal should be. But Thronas-Kaho‘onei said that ultimately, “we are all saying the same thing — protect our resources, never mind the money.”

“You know, we not trying to kill more people. We not trying to hurt more people’s feelings, not trying to screw more families up. We trying to make it so that what is rightfully ours can stay ours,” he said. “The money can return to the people who want the money, the land can return to the people who own the land, and even the people who got finagled into buying a fraudulent deed can get back what they deserve.”

Asked if he believes it is possible to win a fight against the most powerful government in the world, Thronas-Kaho‘onei said, “Of course. You gotta know it! It’s only up to the fighters, you know? Mind over matter. David and Goliath.” A more immediate challenge Thronas-Kaho‘onei will face is getting to Oahu to argue his case before the appellate court in Honolulu — he can’t get on a plane without a state ID. His answer — “I’ll just sail over.”

The movement

Protesters on Mauna Kea fighting to block construction of the Thirty Meter Telescope recently brought international attention to the Hawaiian sovereignty movement, but over the past few years, a growing number of civil rights activists, academics and even federal government officials have come out in support of an independent Hawaii.

In December 2018, the U.S. Commission on Civil Rights issued a report backed by a majority of its eight members, urging Congress to pass laws that would allow Native Hawaiians to form their own governing body and provide “at least all the same federal benefits that Native Americans have.”

“The federal government has a special political and trust relationship with Native Hawaiians in part because it bears responsibility for the overthrow of the Kingdom of Hawaii and the annexation of Hawaii, which suppressed Native Hawaiians’ sovereignty over their land,” the commission’s report said. “Congress should pass legislation to provide a process for the reorganization of a Native Hawaiian governing entity.”

In February 2018, United Nations Independent Expert Alfred-Maurice de Zayas penned an open letter to the Hawaii State Judiciary, calling the Hawaiian Islands, “a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation.”

De Zayas has served as the UN Independent Expert on the Promotion of a Democratic and Equitable International Order since he was appointed to the position in 2012 by the UN Human Rights Council. His letter in 2018 called for the state judiciary to no longer “enable or collude in the wrongful taking of private lands, bearing in mind that the right to property is recognized not only in U.S. law but also in Article 17 of the Universal Declaration of Human Rights.”

“Governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state, not the domestic laws of the occupier,” De Zayas wrote, recommending Hawaiians be provided access to UN procedures and mechanisms “in order to exercise their rights protected under international law.”

The judge and the defendant

“I gotta tell you,” Valenciano told Thronas-Kaho‘onei during a pre-trial hearing in June, “the motion to suppress you filed was pretty good.”

Valenciano tried to talk the young man into getting a professional attorney, a conversation the two had clearly had on multiple occasions since Thronas-Kaho‘onei began representing himself in the case, five months earlier.

“Is there anything I can do for you?” the judge asked.

“Not unless the attorney is competent in international law and is not employed by the state of Hawaii,” Thronas-Kaho‘onei answered.

Valenciano had been practicing law for a decade when Thronas-Kaho‘onei was born, and age is the least of what separates them. Still, the two men seem to have developed some kind of a rapport, albeit an unusual one. Sometimes they bicker in court at odd times, like old friends who don’t know how to communicate without fighting.

“Mr. Thronas-Kaho‘onei, put your shirt down please,” Valenciano said, stumbling over the last name, as he does no matter how many times he pronounces it. The young man had just walked up to the low wooden table reserved for defendants and their lawyers.

“I’m sorry Judge,” Thronas-Kaho‘onei said, pulling his arms from over his head. He finished a prolonged upper-body stretch that had started when he stood up from his seat on the uncomfortable wooden bench at the back of the courtroom and went on while he ambled down the aisle. “Your Honor, I was just trying to —”

“I’m up here trying to officiate this proceeding,” Valenciano said, cutting him off. “And I no like looking down and having to see your whole body.”

The exchange went back and forth like that for a couple minutes, with Valenciano trying to get angry and Thronas-Kaho‘onei trying to pretend he was sorry.

The verdict and the county’s response

Thronas-Kaho‘onei hung the jury on count one — promoting a dangerous drug. Jurors were not able to conclude beyond a reasonable doubt that he was guilty of a crime for the marijuana roach police retrieved from the seat of his car, but they did find him guilty of resisting arrest, a misdemeanor that carries up to a year in jail.

Below is a press release issued Friday by the County of Kauai:

A fifth circuit jury this week found Kapana Thronas-Kahoonei, 25, of Anahola, guilty of Resisting Arrest following a three-day trial.

According to evidence presented at trial, on Feb. 20, 2019, Kaua‘i Police Department Officers Joel Snyder and Alexander Lacson Jr., conducted a traffic stop on a white sedan for lacking a rear license plate. Officer Snyder observed a marijuana cigarette in the driver’s side door compartment and attempted to arrest Thronas-Kahoonei, who violently and actively resisted those attempts.

Eventually it took three officers to subdue the defendant. This incident occurred only five weeks after Thronas-Kahoonei was found guilty by another fifth circuit jury for an unrelated Resisting Arrest charge.

Both cases were prosecuted by Deputy Prosecuting Attorney Kimberly Torigoe. Thronas-Kahoonei represented himself in each case.

Thronas-Kahoonei faces sentencing by Fifth Circuit Chief Judge Randal G.B. Valenciano on Dec. 5, 2019, and faces up to one year in jail and/or a $2,000 fine.

“The men and women of the Kaua‘i Police Department put themselves in harm’s way each day to protect our community and they deserve to come home safely at the end of every shift,” stated Prosecuting Attorney Justin F. Kollar. “We thank them for their sacrifices and we thank the jury for its efforts in this case. Justice has been achieved.”