Trial with 2 juries set
for co-defendants

The rare setup aims to preserve
the rights of the men, accused of
attempted murder

An attempted-murder trial is scheduled to unfold in U.S. District Court on Monday with two juries for two co-defendants, an arrangement that has not occurred in either state or federal court in recent years.

It is a state case being tried by the city prosecutor's office, but the evidentiary portion of the trial will be held in a federal magistrate's courtroom because it can accommodate two juries simultaneously.

"It's very unusual," said Circuit Judge Karl Sakamoto. "It's always imperative that defendants will have a fair trial, and I think the state and the defendants can expect it will be a fair trial."

Two juries -- one for each defendant -- are being seated because both defendants allegedly gave statements implicating themselves and each other, according to court documents.

The statement each gave to police is not admissible against the other because if either defendant refuses to take the stand, as is their right, it would violate the other person's constitutional right to confront his accuser.

In this case, Solomon Kahalewai Jr. and Christopher Hicks are charged with second-degree attempted murder for allegedly chasing down a 21-year-old California visitor, Ivan Kaloyanov, in May behind the Hawai'i Convention Center.

Kaloyanov was punched, kicked and stomped on as he lay on the roadway. He suffered severe head injuries and was in a coma for days. Doctors who treated Kaloyanov said he would likely be impaired for the rest of his life.

The U.S. Supreme Court has ruled that a defendant is deprived of his Sixth Amendment right to confrontation when the confession of a defendant who decides not to testify is admitted during a joint trial -- even if the jury is told to consider the statement only against the person confessing.

To avoid such a scenario, Deputy Prosecutor Barry Kemp asked the court for two juries so that only the jury for Kahalewai will hear the statement he made allegedly implicating himself and others. Likewise, when the statement Hicks gave is played, only the jury for Hicks will be present.

In his request to the court, Kemp noted that the use of multiple juries has withstood constitutional challenges in other jurisdictions and saves on court costs. Having two juries also gives each defendant a fair trial by a jury concerned solely with that defendant's case, Kemp argued.

He noted that 95 percent of the evidence he intends to present is common for both defendants, such as the testimony of Kaloyanov, eyewitnesses, police and medical personnel.

"It's a huge savings of time and expense for the state Judiciary, my office and for the witnesses," some of whom are flying in from the mainland, Kemp said.

Kahalewai, Hicks and a third defendant, Johnston Kapua, whose case will be tried separately, objected to the state's proposal.

"The accusations are as serious as you can get, and we didn't feel it was appropriate to experiment with having two juries," said deputy public defender Walter Rodby, who represents Hicks.

Kapua's trial begins March 22.

Circuit Judge Dan Kochi, who retired in December, granted the request for dual juries, ruling that Kahalewai and Hicks failed to show they would be prejudiced by the arrangement.

"The joint-trial-with-two-juries arrangement seems to be the best way to expedite the case, consistent with protecting the constitutional rights of the defendants and promoting the ends of justice," Kochi concluded.

Kochi also arranged with the federal court for the use of a courtroom because of its larger size. At the most there will be a total of 28 jurors, including four alternates sitting in the courtroom.

The location of the trial does raise some First Amendment issues because cameras are traditionally banned from federal courtrooms, except for ceremonial occasions such as naturalization ceremonies or the swearing-in of judges or the U.S. attorney.

A federal rule passed by the Judicial Conference of the United States prohibits cameras in the federal courthouse under any circumstances, even if it is a state trial, said Chief U.S. District Judge David Ezra.

"The rules provide that cameras may be permitted on ceremonial occasions, at the discretion of the court, but not in a judicial proceeding," Ezra said.

Ezra acknowledged that the two-jury trial is unusual, but he said it happened before in federal court here many years ago, though not in his courtroom.

The federal court is accommodating the state trial at no cost because the state Judiciary has accommodated federal cases on the neighbor islands where there are no federal courthouses, Ezra said.

Richard Hoke, attorney for Kahalewai, said his main concern is the period of time that has elapsed since their jury was selected last week until Monday's trial. This week was devoted to selecting the jury for Hicks. Anything could happen in the meantime, including jurors getting sick, Hoke said.

He is also concerned about possible speculation among jurors when one jury is dismissed and the other is allowed to remain while the respective defendant's statement is being played, and how it will affect their decision-making.


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