Interesting. This happens quite often the dismissal of a case when it reaches the point where a court must rule on whether it has jurisdiction. When the burden of proof rests on the court, the court withdraws or a technicality is ruled. Our quest for Truth is stopped in its tracks. Normally, when a charge against you is dismissed in court, it’s a time to celebrate. Not so when you want to take a stand on a controversial issue and go to significant personal expense to present evidence in defense of your actions, but the judge decides not to hear it while simultaneously dismissing the charge against you. That’s what happened on Dec. 19 in the District Court of the Third Circuit, (North and South Hilo Division). Charles ‘Kale’ England went to trial over collecting lava rock at Mauna Loa Forest Reserve on the Big Island of Hawaii. Kale wanted to protest his innocence by having historical evidence presented that the Hawaii state judiciary lacks jurisdiction to try him since he is a subject of the Hawaii Kingdom which continues to exist despite the illegal annexation of the Kingdom by the USA in 1898. Kale flew in a highly credentialed law professor from Honolulu to present the historical evidence showing how U.S. legal documents are deficient in proving that the territories of the Kingdom were lawfully annexed. The prosecuting attorney moved a motion to dismiss Kale’s evidence which was described as falling under the “Hawaii Kingdom defense.” The judge agreed with the prosecutor, and in the process raised an intriguing question. Does the refusal to hear evidence based on a Hawaii Kingdom defense constitute a war crime under international law? Kale makes a living building Hawaiian altars (ahu) and walls from lava rock he collects from all over the Big Island. In doing so, he is careful to respect areas that are sacred to Hawaiian tradition and local Hawaiians. That doesn’t apply, however, to lands administered by the State of Hawaii or the U.S. National Parks Service. He believes that such lands were illegally annexed by the U.S. back in 1898. So when Kale was cited by a Hawaii Department of Land and Recreation officer on Nov. 13, 2013 for collecting rocks at the Mauna Loa Forest Reserve on the Big Island of Hawaii, he decided he would contest the misdemeanor charge. Kale represented himself at his initial court appearance on Jan. 7, 2014 with oral arguments that the Court lacked jurisdiction since he was a Kingdom of Hawaii subject. The judge hearing the case, Barbara Takase, directed Kale to the Office of the Public Defender to have counsel present at his next scheduled hearing. Kale was assigned an attorney, Austin Hsu, who at the Feb. 5 hearing promptly withdrew his counsel since he was unwilling to defend Kale’s argument that the court lacked jurisdiction. Another public defender, Gary Zamber, also withdrew his counsel at the subsequent Feb. 18 hearing due to a “conflict of interest”. In March, Kale enlisted the services of Dexter Kaiama, one of the few practicing attorneys in the state of Hawaii prepared to defend clients on the basis that U.S. courts lack jurisdiction over Hawaii Kingdom subjects and territory. The main defense strategy adopted by Kale and his attorney was to have the state dismiss the charge since it lacked “subject matter jurisdiction.” Kaiama filed a petition to dismiss the charge at a hearing held on August 8, before Judge H.P. Freitas. Judge Freitas recused himself from the bench trial initially scheduled for September 26, and later rescheduled to Dec. 19 before Judge Takase. As part of his legal defense strategy for his Dec. 19 trial, Kale decided to fly in at his own personal expense an expert witness from Honolulu to present the legal arguments and historical facts to the judge. The expert witness, Professor Williamson Chang, teaches law at the University of Hawaii and has been prominent over the last two decades in arguing that U.S. authorities lack jurisdiction over the Hawaiian Islands. Kale and his attorney, aimed to convince Judge Takase to dismiss the charge since the state lacked subject matter jurisdiction over both the territory and subjects of the Hawaii Kingdom. Professor Chang had submitted in advance the legal brief and documents he wanted to present to Judge Takase and the deputy prosecutor, Sylvia Wan. He was denied the opportunity to present his arguments at Kale’s trial because Judge Takase agreed with the prosecutor that his arguments fell under the “Hawaii Kingdom defense.” The judge nevertheless subsequently went on to dismiss the charge against Kale. Not because the State lacked jurisdiction, as the defense attempted to argue, but on the technicality that the main prosecution witness was absent. Apparently he was at the hospital with his wife who was due to give birth. This explanation did not impress Judge Takase who dismissed the charge “without prejudice” - meaning that it can be refilled at a later time. I interviewed Prof Chang after the trial to find out what he wanted to present before the judge and his response to the judge’s ruling. He said that his historical research is based solely on his legal analysis of U.S. legislative enactments, and therefore is only indirectly related to what the prosecutor argued as the “Hawaii Kingdom defense”. Prof Chang said that his legal brief and documents are separate to arguments claiming that the Hawaii Kingdom continues to exist, and has jurisdiction over Hawaiian subjects and territories. He is making the separate but stronger argument, he claims, that U.S. authorities have no jurisdiction over the Hawaiian Islands because the Islands were never described in accompanying U.S. legislation in contrast to a valid international treaty, This distinction was lost upon the prosecutor whose motion to dismiss the Professor’s evidence based on the assumption that it was part of a Hawaii Kingdom defense was accepted by the judge. Prof. Chang said that by dismissing the case against Kale without prejudice, the judge had made a “Solomon-like decision where she didn’t want to hear the evidence about the United States not having jurisdiction.” He finished the interview by saying that the judge’s decision not to hear arguments relating to the annexation of Hawaii is a “great injustice” similar to how black South Africans were treated during apartheid era. I also interviewed Dexter Kaiama, Kale’s defense attorney, who was also disappointed with the judge’s dismissal of the evidence that he planned to present in Kale’s defense. Kaiama said that “the court was in error in not following the relevant factual evidence, and the legal citations that were provided.” He said that his primary argument was the fact that: “Because the Hawaiian Kingdom exists and this is Hawaiian territory, any efforts by the United States to claim sovereignty over this area is in fact an intervention into Hawaiian Kingdom territory.” He said that “the judge’s decision not to hear the testimony of Professor Chang was … another example of the court’s unwillingness to hear that kind of testimony because of the … consequences that testimony puts upon the court.” What is most startling is Kaiama’s claim that in failing to admit the evidence concerning the continued existence of the Hawaii Kingdom and the subject matter jurisdiction of the Hawaii state court, the judge may have committed a war crime. In a previous case, Kaiama had submitted the name of Judge Takase, who presided over Kale’s case, to the International Criminal Court along with other U.S. district court judges for refusing to hear evidence related to Kingdom of Hawaii laws. Kaiama confirmed that the International Criminal Court had received his complaints in March 2013, and assigned it a docket number. In September 2013 he received confirmation that the cases were pending, but was not able to determine whether the complaints were being actively investigated, he could not confirm. He did however describe second hand testimony from both prosecuting and defense attorneys in a separate case that Judge H.P. Freitas had “volunteered information that he had received some process from the Hague or the International Criminal Court.” In the case of the State of Hawaii versus Charles ‘Kale’ England, by dismissing the state’s charge on a technicality Judge Takase may have rendered a “Solomon-like decision” over a misdemeanor charge that had dubious merit. Alternatively, the Hawaii state judiciary may have found a way to frustrate people like Kale from having their day in court by refusing to hear evidence that would otherwise raise inconvenient legal questions over whether or not the State of Hawaii has jurisdiction over lands and subjects illegally acquired from the Hawaii Kingdom. More controversially, by refusing to admit and hear evidence related to what Hawaii state prosecutors generally describe as the “Hawaii Kingdom defense,” judges may be committing war crimes under international law.
Posted on: Mon, 19 Jan 2015 21:35:36 +0000
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