Police clear Kauai journalist

Trespassing charges are dropped in the case that stemmed from a burial protest

HAENA, Kauai » Kauai police brought charges this week against a Kauai journalist for trespassing during a protest last month against construction of a house on a site containing Hawaiian burials.

But when Joan Conrow showed up at KPD headquarters to be arrested Wednesday night, Kauai Police Chief Darryl Perry told her to go home -- and then had prosecutors rescind the charges Thursday.

Conrow, a former Honolulu Star-Bulletin and Honolulu Advertiser journalist who wrote a story for the Honolulu Weekly about the oceanfront home being built atop 30 graves, was originally charged with simple trespass, a petty misdemeanor.

But Perry said yesterday that he looked at the arrest warrant and decided that the arrest raised First Amendment issues.

"She was covered by the First Amendment," Perry added. Her presence "didn't sit within the criteria of criminal trespass."

Three protesters have been arrested for refusing to leave the home site, on Kauai's North Shore fronting Naue Point. Three more warrants have been issued, Perry added.

"We are focused on those who chained themselves together," said Perry. "I want to make sure we are doing the right thing."

Conrow's attorney, Daniel Hempey, said that Perry's "prompt corrective action averted" what could have been a dangerous precedent.

Since there were a number of reporters, both print and television, that entered the home site, owned by California businessman Joseph Brescia, the choice of picking Conrow as the lone reporter arrested could have been construed as censorship.

"Law enforcement doesn't get to pick and choose (whom to arrest) after the articles are out," Hempey added.

Star-Bulletin / August 2008 Native Hawaiians Andrew Cabebe, left, Jim Huff and Hank Fergerstrom linked arms last month to protest the building of a house on a Hawaiian burial ground on Kauai. A Kauai journalist originally charged with trespassing during the protest had the charge dropped on Thursday.

However, according to the decision, issued by Circuit Judge Kathleen Watanabe on Monday, the home project will go back to the Kauai-Niihau Burial Council next month for a renewed look at the burial plan, which kept all 30 sets of remains in place. Of those, seven are directly beneath the home and have been placed under concrete "jackets."

The decision, part of a case which Brescia brought against a half dozen people he accused of trespassing, came after resident Jeff Chandler brought a motion for an injunction to keep the house from being built. Chandler lives in the area and says he is a descendent of some of the people whose bodies were found.

The motion to halt the construction was denied, but Watanabe said the state had erred when state archaeologist Nancy McMahon failed to consult with the burial council after the final plans for the home were finalized in April. They also did not do enough to notify possible descendants, she said.

The burial council is expected to hear testimony on the project at its next meeting, Oct. 2.

Brescia has been trying to build a home for eight years but had to fight numerous legal challenges over the size and location of the house on the 15,000-square-foot plot even before the burials were found last year.

In the meantime, a nonprofit group is attempting to raise funds to buy the property.

Malama Kauai has received a promise of $75,000 from an anonymous donor, but the group thinks it may take over $1 million to buy the site, since Brescia has spent at least that on the land, construction and legal costs.

Donations are being taken at its Web site, malamakauai.org.