The trial of two Native Hawaiian men charged with a federal hate crime for assaulting a white man who attempted to move into their remote village on Maui was again postponed, with court filings on the case shedding light on the arguments to come from lawyers on both sides.
The central question that jurors will be asked to decide is whether the men attacked the victim because he was white or because he was a newcomer who disrespected their community, court documents show.
The trial, set to begin Aug. 16, was rescheduled to Nov. 7.
While the state already leveled felony assault charges against Kaulana Alo-Kaonohi and Levi Aki Jr., the U.S. Attorney’s Office for the District of Hawaii charge Opens in a new tabd them with a hate crime for carrying out a “racially motivated attack.” But according to a trial brief filed Aug. 5 by Alo-Kaonohi’s attorney, Salina Kanai, the victim’s race “had nothing to do with it.” Instead, Kanai wrote, it was the victim’s “disrespect and insulting behavior that caused the defendants to confront him.”
The attack occurred in February 2014 in Kahakuloa, a rural neighborhood that is a 45-minute drive down a narrow, twisting road northwest of Kahului. Chris Kunzelman of Arizona bought a foreclosed house on the bay there, sight unseen, according to media reports. Kunzelman arrived to find a locked gate blocking access to a road leading to the property, so he cut the lock and drove down what he insisted was a legal easement, according to Kanai’s trial brief.
Alo-Kaonohi and Aki believed he was trespassing on their private road without easement rights, Kanai wrote.
Video cameras that Kunzelman mounted on his Land Rover captured portions of the incident when the defendants approached Kunzelman, but the assault upstairs on the lanai of the home is out of frame, according to Kanai’s brief.
Federal prosecutors allege in their trial brief that Aki gave a shovel to Alo-Kaonohi, who hit Kunzelman in the head with it. Aki himself then struck Kunzelman with the shovel, punched and headbutted him, leaving the Arizona man unconscious, then proceeded to kick him repeatedly in the ribs, according to the trial brief.
Kunzelman was diagnosed at the hospital with a concussion, head trauma and broken ribs.
When the two Maui men were prosecuted by the state in Circuit Court, Alo-Kaonohi pleaded no contest to first- degree assault and Aki pleaded no contest to first-degree terroristic threatening. In 2019, both were sentenced to four years of probation.
In 2018, Alo-Kaonohi pleaded no contest in state court to second-degree assault in an unrelated case, according to court documents. Five months after the attack in Kahakuloa, he punched a 53-year-old white man he didn’t know in a Wailuku bar without provocation and was sentenced to four years’ probation and a year in prison, which he was allowed to serve on weekends, according to court documents.
In 2021, seven years after the Kahakuloa assault, the U.S. Attorney’s Office charged Alo-Kaonohi and Aki with a federal hate crime. Their trial, originally scheduled for March 2021, has been delayed multiple times due to concerns over COVID-19.
On Aug. 17, U.S. District Court Judge J. Michael Seabright rescheduled the trial again, over both defense teams’ objections, after the prosecutors announced that Hawaii-based Assistant U.S. Attorney Chris Thomas, one of the three prosecutors on the case, needed time to recover from an unexpected surgery, court documents show.
The other two prosecutors, Tara Allison and Christopher Perras, are from out of state and are experienced in federal civil rights and hate crime cases. Allison successfully prosecuted the four former Minneapolis police officers involved in the 2020 death of George Floyd in a federal civil rights case. Perras worked on the hate crime prosecution of three men who killed Ahmaud Arbery in Georgia in 2020 and were found guilty in February.
Perras declined to comment on the Maui case. Allison referred the Honolulu Star-Advertiser to a Justice Department spokesperson, who did not respond to a request for comment.
Hate crime charges can carry an added penalty beyond that of assault but require prosecutors to prove not just what happened but why.
Alo-Kaonohi and Aki, who are facing a maximum penalty of 10 years in prison, pleaded not guilty in federal court on Jan. 19, 2021.
Securing a hate crime conviction requires prosecutors to show that racial animus motivated the attack, even if it was not the main motive but “the proverbial straw that broke the camel’s back,” the federal prosecutors wrote in their proposed jury instructions. At the same time, they must show the assault would not have happened had the victim not been white, they wrote.
Prosecutors allege in their trial brief that the defendants called Kunzelman a “(expletive) haole” and “whitey”; said he was “too (expletive) white” and “the wrong (expletive) color”; and that no “white man” could ever live there.
However, in a video of the incident that did not capture the assault in its entirety, the only clear utterance of the word “haole” was when one defendant said to Kunzelman, “Use your (expletive) head. You’s a haole, eh? You supposed to have (expletive) brains, eh?”
The video does not clearly capture the dialogue when the men moved upstairs and out of view.
Aki’s defense team planned to call an expert witness to testify that “haole” can be “a descriptor of non-native things,” according to a document the prosecution filed to bar University of Hawaii-Manoa Hawaiian language professor Katrina-Ann Oliveira from testifying. The prosecutors acknowledged that the word can be unoffensive in some contexts and a racial slur in others.
Oliveira declined to comment.
Kanai declined to comment and would not make Alo-Kaonohi available for comment, while Aki’s attorneys, Lynn Panagakos and Kelli K. Lee Ponce, did not respond to requests for comment.
In her trial brief, Kanai argued that the setting of the attack is crucial context.
Kahakuloa is located in an isolated valley where about 100 people, most of whom are Native Hawaiian, have lived for generations, she wrote. The place is “frozen in time, a deliberate and collective choice of the residents that live there,” she said.
She claimed the men attacked Kunzelman not because he was white but because of his “disrespect for their culture and way of life in this unique village.”
After Kunzelman, who could not be reached for comment, bought the foreclosed house on the bay, he “failed to understand that he was attempting to settle amongst an extraordinarily tight-knit community with long-established methods of negotiating access to village resources and resolving disputes far different than what he may have been accustomed to,” Kanai wrote.
A small number of white residents live in Kahakuloa, and one of them spoke to the Star-Advertiser on the condition that his name be withheld.
“I cross 13 pieces of property to get to mine, and I made sure every one of the local families are good with it before we put our road in here, and that was 40 years ago,” he said.
