Re: Jim Albertini Mauna Kea Motion for Dismissal WITH Prejudice heard in Hilo court Wed. April 13, 2016
For Public Release
Aloha kakou,
Today, Judge Barbara Takase, ruled against my motion to dismiss the charge of obstruction “with prejudice.” So as it stands, (even though the charge is dismissed for now) the prosecutor can recharge me again for the same charge of obstruction within a year. As I noted in court. “I’m not trying to rub the prosecutor’s nose in this. I’m simply trying to remove the prosecutor’s barbed fishing hook from my nose so the threat of prosecution is not hanging from my nose for another year.” I stated that dismissing the case “with prejudice” will further the interest of justice and I asked the judge to exercise discretion under the totality of circumstances surrounding events on Mauna Kea regarding TMT.
I asked the prosecutor (E. Britt Bailey) whether she is planning to file new charges since dismissal is currently without prejudice. If the prosecutor said yes, then the charge must be dismissed with prejudice to further the goals of judicial economy. If she says no, then the dismissal should be with prejudice since no further prosecution is anticipated. Prosecutor Bailey did not offer any response. She remained silent in court. Judge Takase clearly had her mind made up before coming into the courtroom.
It’s important to keep everything in perspective. Things could always be much worse. My name could be on the U.S. extrajudicial drone kill list. But usually you don’t find that out until you are turned into what the CIA and the military call “Bug Splatter.”
Mahalo to all for your good wishes, presence in court, and solidarity on the Sacred Mauna. Let us never give up the struggle to protect Mauna a Wakea and the work for justice and peace.
Before departing, I wished Judge Takase a happy retirement. She will be stepping down from the bench in May. It was good to see her smile. She was probably thinking “Thank goodness, I won’t have to deal with this character anymore.”
Jim Albertini
On 4/10/2016 8:09 PM, Jim Albertini wrote:
Press Release: Mauna Kea Protector Jim Albertini court hearing Wed. April 13, 2016 at 1:30PM in Hilo courtroom 2B before Judge Barbara Takase
Issue: Albertini requesting that his dismissed obstruction charge be dismissed WITH PREJUDICE, not without prejudice, so that the same charge can’t be refiled.
Albertini filed a motion for reconsideration of the prosecutor’s dismissal of obstruction charge without prejudice, which keeps the threat of being recharged for the same offense.
Albertini says that the prosecutor is partly fulfilling her professional obligations as a minister of justice by moving for dismissal of the charges, but my motion is asking the court to exercise discretion to dismiss WITH PREJUDICE under the totality of circumstances (the fact that several of my co-defendants have been been found not guilty on the defense of necessity (choice of evils) and the prosecutor has moved to dismiss numerous other complaints due to judicial economy. I was part of a group all charged with the same offense for the same action –obstructing the Mauna Kea road to prevent the Thirty Meter Telescope (TMT) construction crew from reaching the construction site to engage in actions alleged by Defendants to be the imminent desecration of one of Hawaii’s most sacred sites. It’s a classic necessity defense –choice of evils defense which has been recognized by this court. It seems manini (picky, minor), and counter to a spirit of justice, to not dismiss with prejudice and keep the threat hanging over my head of being charged for the same offense for another year. It’s already been more than 1 year since our April 2, 2015 peaceful spiritual stand to protect the Mauna. In fact on April 2, 2016, myself and several others journeyed to the ahu (Hawaiian altar) built on the proposed Mauna Kea TMT site to offer ho’okupu (spiritual offerings) in thanksgiving to Ke Akua for the blessings of Mauna a Wakea, and all those who have been a part of the effort to protect the sacred. It seemed to me a most fitting way to celebrate the stand of 1 year ago.
Based on this court’s earlier rulings, including my raising the choice of evils defense in a pre-trial motion which the court recognized would put a burden on the prosecutor to disprove if this case went to trial. It follows that the burden should now be put on the prosecutor to show that there is some unique circumstance related to my charge that serves as a basis for not dismissing the charge with prejudice.
In summary, I hereby ask the court to dismiss the obstruction charge against me WITH PREJUDICE. Mahalo and a Happy upcoming retirement to Judge Barbara Takase beginning in May.
—
Jim Albertini Malu ‘Aina Center For Non-violent Education & Action P.O. Box 489 Ola’a (Kurtistown) Hawai’i 96760 Phone 808-966-7622 Email ja@malu-aina.org www.malu-aina.org
