Saturday, June 2, 2001

Kauai County Prosecutor Michael Soong, chin in hand, left,
defense attorney Mark Zenger and deputy county attorney
Craig De Costa attended yesterday's hearing for Orion
Macomber and Eamonn Carolan, right, in an attack on gay men.

Attack on gays
spurs weighty
trial charges

2 men are accused of attempted
murder as Hawaii readies for
its first hate crime law

By Anthony Sommer

LIHUE >> Two teenage Kauai men accused of attacking a group of gay campers at Polihale State Park in the early hours of May 26 have been ordered to stand trial on attempted-murder charges.

But in issuing her ruling late yesterday, Kauai District Judge Trudy Senda cautioned that the only standard prosecutors had to meet at the preliminary hearing was one of "suspicion" rather than "beyond a reasonable doubt," which will have to be proved in a trial.

Senda also continued their bail at $250,000. Both remained in custody as of late yesterday.

Attorneys for Eamonn Carolan, 18, and Orion Macomber, 19, argued that if their clients committed the acts at all, they are guilty of criminal property damage, which carries a sentence of up to 10 years.

Attempted murder carries the same mandatory sentence as murder: mandatory life in prison without any chance of parole.

The case comes as Gov. Ben Cayetano is about to sign the state's first hate crime bill into law. The bill would impose longer sentences for crimes motivated by the victim's race, religion, disability, ethnicity, national origin or sexual orientation.

The Kauai victims said they were targeted because they had gay-pride flags posted at the campsite.

Cayetano, before promising to sign the hate crime bill, said he was concerned about distinguishing one category of people from another, adding that Hawaii "isn't a place where you see gay people ostracized or beaten up or killed like you see on the mainland."

Cayetano's announcement that he would sign the bill came a day before the attack. He had not signed it as of yesterday, but he has until July 10.

The governor said he would create the law because there is a great deal of symbolism in the bill and it is important that the government make a statement on the issue.

"We're hoping the Kauai incident will be the straw that will ... get the bill signed," said Carolyn Golojuch, president of Parents, Family and Friends of Lesbians and Gays.

During the second day of the preliminary hearing yesterday, Kauai police officer Darla Abbatiello testified she originally wrote her report as a criminal property damage case and was ordered to change it to attempted murder by Detective Roy Asher.

Asher testified he changed the charge because of the "totality of the circumstances." He did not elaborate.

And Deputy Prosecutor Craig De Costa in his closing arguments said the intent of the two to commit murder was demonstrated when the men repeatedly yelled, "Die, faggot, die," and, "God said you and your kind must die."

"That's what they said they wanted to do," De Costa told Senda.

Testimony at the two-day hearing told how a group of about 20 gay men who regularly go on camping trips together went to Polihale State Park for the Memorial Day weekend. Some arrived as early as May 25, but most got to the beach May 26. Two rainbow flags, symbols of gay pride, were at their campground.

Meanwhile, Carolan and two women friends went to Polihale on the afternoon of May 26. Both women, Dominique Kanealii, 18, and Alison Fishburn, 19, testified they passed the gay men's camp, and one of them simply commented that it was there, but there was no further discussion of it.

They said they spent the afternoon and evening drinking beer and smoking marijuana and drove to Koloa and picked up Macomber and then went back to Polihale. They said they drank more beer and smoked more marijuana.

The women said they went to sleep at about 1:30 a.m. and last saw the two men sitting by their campfire. They said the nearby group of gay campers was never discussed.

Members of the gay group testified they were awakened about 3:30 a.m. by the sound of car doors opening and closing and discovered one man's tent was on fire after kerosene had been poured on it. The occupant of the tent escaped unharmed, and the damage to the tent was limited to the mosquito netting.

Shortly afterward, a tiki lamp fell or was pushed over on a second tent, causing a small scorch mark about the size of a quarter and a kerosene splash about 3 inches wide. Even though that was the basis for the second attempted-murder charge, officers did not take the tent as evidence.

Police were called and found Macomber unconscious at a nearby campground next to the car his group was using. A hooded jacket that matched the victims' description of one of their attackers and belonging to Macomber was in the back seat of the car. A can of kerosene was found near him.

Carolan was found sleeping near the two women. The victims said one of the men who attacked their camp was wearing red shorts, and Carolan was wearing red surfing shorts when he was arrested.

Zenger, Carolan's attorney, said police and prosecutors have grossly overcharged the case. If the two men were the ones responsible, the proper charge is first-degree property damage, which is what police originally alleged in the case, he told Senda.

"It's arson, it's reckless, it's stupid, but the intent was not murder," Zenger told the judge.

The Associated Press contributed to this report.

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