By Dennis Oda, Star-Bulletin
Gabriel Kealoha hugs his attorney, Hayden Aluli, after the court
proceedings ended yesterday. Kealoha's mother, Elysa, is crying.
Family pastor Tom Van Culin is at left.
Bail denied
for Kealoha
Judge cites young slayer's
By Linda Hosek
sinister ‘dark side’
Star-BulletinFamily Court Judge Darryl Choy minced no words this morning when he denied bail for 18-year-old Gabriel Kealoha, saying the youth had not dealt with his "dark side" that became lethal last year when he recklessly caused the death of an off-duty police officer. Choy also faulted a diagnostic team that twice recommended early release for Kealoha to attend college, saying the team had only Kealoha's self-defense version of the incident in which Sgt. Arthur Miller died from a 33-foot fall from an H-1 viaduct.
He recommended the team be reorganized to include public safety representatives and that a psychiatrist who testified Kealoha showed no ongoing dangerousness be terminated as his therapist.
Choy said Kealoha apparently had not received a focus on anger management at Hawaii Youth Correctional Facility, even though he had recommended the focus in April when he sentenced Kealoha to the maximum juvenile term for manslaughter.
He also said Kealoha's aggressiveness and anti-social behavior continued after the Oct. 27 incident, in which he shoved a legally drunk Miller over the railing to his death, to Feb. 25 when he argued with his girlfriend and teachers.
"These matters can't be glossed over for the sake of a college education," he said. "The court is obligated to protect the public."
He also directed sobering comments to Kealoha's family and friends, saying they have rationalized, explained-away and denied Kealoha's behavior.
"It is difficult not to like Gabriel Kealoha," he said. "But he also is the subject of a dark side that is sinister and became lethal. Until those who love him address this, his rehabilitation (is in question.)"
Hayden Aluli, Kealoha's attorney, today said he would seek an expedited ruling on Kealoha's release from the state Supreme Court to let Kealoha begin his residential preparatory program Sunday.
Aluli also said he would appeal numerous issues, including whether Choy should have recused himself from proceedings when he realized that he and Miller, the victim, had attended the same intermediate school. Choy refused to hear additional testimony on the matter this morning, saying he had no recollection of Miller and that he had issued a restraining order against him about six months before the incident.
By Dennis Oda, Star-Bulletin
Gabriel Kealoha gestures as he turns to his crying mother,
Elysa Kealoha, after yesterday's proceedings. Attorney
Hayden Aluli is on the right
Aluli said Choy's comments that he wanted Kealoha to become a peaceful person before he became an educated one were hollow. "Choy has a political agenda to vindicate his adjudication of Gabriel in the eyes of the public."City Prosecutor Peter Carlisle said he was pleased with the ruling and that he also was "deeply concerned" about the way the facility's diagnostic team had operated.
Elaine Jackson, Miller's mother, said after the hearing that she wasn't angry at Kealoha and hoped he could pursue studies at the facility. "He will have a chance to start over," she said.
In his decision today, Choy had to weigh testimony from the youth facility's administrator who denied early release to Kealoha to attend a University of Hawaii residential preparatory program.
John Shinkawa testified yesterday he prayed to God for help with his decision, made after a diagnostic team twice recommended that Kealoha be furloughed by June 29 to attend the UH program.
Shinkawa, an elder at a Christian chapel, said he also contacted the prosecutor's office to hear its version of the death of Miller, who fell from the H-1 viaduct in a traffic scuffle after he forced Kealoha off the road.
He said Kealoha told him he had shoved Miller, who was legally drunk and had been suspended for 10 days for previously beating a teen, in self-defense.
But Shinkawa said a prosecutor told him that Miller's back was to the railing and that Kealoha was the aggressor, adding: "My perspective on the case changed."
He said he overruled the diagnostic team because: manslaughter is a Class A offense, a death occurred in the incident, and that Kealoha could be imprisoned only until his 19th birthday Feb. 2.
Aluli said after the hearing he was appalled that Shinkawa called the prosecutor's office before he denied Kealoha's release. He said Shinkawa didn't give Kealoha a chance to rebut the prosecutor's interpretation.
"But even more troubling is Mr. Shinkawa's use of prayer," he said. "It violates every notion of the separation of church and state."
Carlisle said it was appropriate for a prosecutor to discuss Kealoha's case with Shinkawa, but denied comment on Shinkawa's use of prayer in his decision.
He said yesterday's bail hearing, the first open proceeding in Kealoha's case, revealed information about Kealoha's behavioral problems, dating to elementary school.
Carlisle also said testimony showed that Kealoha had an anger problem in the months before the incident and that Kamehameha Schools assigned him a mentor to monitor and guide him.
Choy opened Kealoha's bail hearing after Carlisle argued that the numerous public statements by Kealoha's defense negated the privacy intended by Family Court in juvenile proceedings.
Kealoha's mother, Elysa, said she wanted an open trial and would gladly compare her son's school record with Miller's police conduct, adding: "None of (Gabriel's incidents) were criminal."
During the hearing, Dr. Barry Carlton, a psychiatrist who evaluated Kealoha at the youth facility, said Kealoha was genuinely remorseful over Miller's death.
"He has demonstrated he understood the meaning of what occurred and that it will force him to adjust his life," he said.
He said he didn't see any ongoing dangerousness in Kealoha and that attending college would enhance his rehabilitation.
Transcript shows Kealoha
By Rod Ohira
used 'deadly force'
Star-BulletinGabriel Kealoha did not act in self defense because he could have avoided a fatal confrontation with police Sgt. Arthur Miller, prosecutors pointed out in winning a Family Court conviction for manslaughter. According to transcripts of the trial obtained by the Star-Bulletin, eight prosecution witnesses testified that Kealoha was the aggressor, including a retired Air Force fighter pilot who saw him push Miller over a 3-foot high barrier on the H-1 freeway last Oct. 27.
In his closing arguments on April 11, deputy prosecutor Kevin Takata noted that location was a key factor in this case because that "simple push, that forceful push, is deadly force capable of causing death or serious bodily injury."
"This is not a push on flat or level land," Takata added. "To give you an analogy, imagine if you would, (a) tall column of rock. Imagine two men standing on that column ready to fight.
"Imagine, if you would, one man has his back to the edge. The other man can see that and he pushes. You know for certain that when that person falls over and hits the ground, they're going to be dead.
"That's the situation we have today. This simple push was deadly force and you cannot use deadly force unless you are confronted with death or serious bodily injury. And there's no credible evidence in all the eyewitness testimony that Mr. Kealoha was ever confronted with death or serious bodily injury."
Takata based his argument on the fact that Kealoha could have left the scene.
"He could have sped away when Miller pulled alongside that shoulder," Takata said. "He didn't have to get out of his car. He could have entered traffic again after Miller stopped.
"Even after Miller got out of his car, (Kealoha) didn't have to approach Miller, for as he indicated, there was nothing impeding him from going back, and there was a lot of room to go. He had a duty to retreat if he was going to use deadly force and he did not follow that duty."
Retired Lt. Col. Gayle Gardner was returning home from Hickam Air Force Base when he witnessed the incident. Eyewitness account
"I saw two men standing facing each other about the front of the rear car," Gardner testified. "I didn't pay much close attention to it until I saw the dark-skinned man grab the light-skinned man by the throat with his left hand and he grasped him above the heart by the armpit with the right hand and leaned forward and shoved him towards the wall.
" ...When the white-skinned body hit the wall, his derriere went up and over the wall. I thought surely he would fall at that time. His feet came up off the ground and were probably two to three feet in the air."
As he slowed and attempted to change lanes, Gardner temporarily lost sight of the men. However, he saw them again through a five-panel, panoramic rear-view mirror in his car. "I saw that both men were back on their feet on the ground," Gardner said. "The white-skinned man was pressed back up against the wall. The dark-skinned man had not removed his hand from his throat nor from the right armpit.
"The white-skinned man's left arm was out to the side," he added. "It appeared to me that he was trying to talk with the dark-skinned man. 'Trying to talk'
" ...The light-skinned man's body is still pressed against the median railing.... His left arm is out to the side, not on that man and almost immediately, he was pushed over the wall."
Seven other prosecution witnesses also testified that Kealoha appeared to have physical control of the confrontation.
Defense attorneys meanwhile, called on at least eight witnesses to testify about Miller's abusive behavior and his antagonism toward teen-agers.
Witness Kinder West, for example, testified that on Dec. 9, 1989, he was slapped in the face by Miller at Kahala Mall.
The defense also presented testimony from several motorists who witnessed the confrontation.
Reid Aken said he saw Miller was approaching Kealoha when he went over the railing while his wife saw two men pushing each other before one went over.
According to April 3 transcripts, Kamehameha Schools science teacher Joel Trusdale testified that he witnessed an argument between Kealoha and his girlfriend, Brianne Naole, on Feb. 25 at the school.
When Kealoha noticed Trusdale, he asked the teacher to leave. When he refused, Kealoha allegedly walked by him and said, "now someone's going to get his ass kicked."
Cyr Pakele, a Kamehameha Schools outreach counselor, testified that Kealoha was given a "time out" or suspension on Feb. 25 for threatening a teacher.
In a March 6, two-page letter to Dr. Barry Carlton, Kealoha's anger-management counselor, Pakele noted that Kealoha has had anger-management problems at school since the seventh grade. History of anger
The letter also stated that seven senior students stated that during the Feb. 25 argument with his girlfriend, "he had thrown a sweater over a railing, thrown some of her personal items on a roof top and shoved her into a metal gateway door causing her to stumble and fall."
Kealoha's attorneys argued the allegations were based on hearsay.
It was decided at a parent conference that the girl be restricted from visiting Kealoha's home and that he continue his education at home so he could graduate with his class.
Eyewitness testimony
By Star-Bulletin staff
‘overwhelming’The evidence from 16 eyewitnesses is "overwhelming" that 18-year-old Gabriel Kealoha acted recklessly when he fatally pushed an off-duty police officer from a freeway viaduct, a Family Court judge wrote in affirming the youth's manslaughter conviction. Judge Darryl Choy said Sgt. Arthur Miller -- a man with a history of drinking and violence problems -- clearly initiated the Oct. 27 confrontation, which led to his death.
"Equally uncontested is the fact that the minor accepted the challenge and voluntarily pulled over and stopped behind the decedent," Choy wrote in his decision.
"Any reasonable and prudent person would have continued to drive ahead and away."
His conclusion: Kealoha behaved in an unjustified manner and had not been acting in self-defense.
The 11-page ruling denying Kealoha a new trial is one of the documents in Kealoha's confidential juvenile records, partially unsealed by Choy yesterday.
Also unsealed yesterday: Senior Family Court Judge Michael Town's decision that kept Kealoha's trial in Family Court instead of waived to adult court. Town ruled the case could be tried in closed Family Court without jeopardizing public safety, but said Kealoha and his family need professional help.
Town's document portrays the Kamehameha Schools graduate as a well-liked teen-ager who got decent grades and had not committed previous crimes, but who also could act impulsively and aggressively with "an angry, confrontational chip on his shoulder."
Town said Kealoha sometimes displayed a "bullying attitude" with threats to teachers and classmates, and was disciplined for school infractions ranging from insubordination to fights with other students.
"Once when his mother was tailgated, he alighted from her car and verbally confronted the other driver, who later contacted police and came to his house," the judge wrote.
Choy's ruling yesterday includes a summary of the incident based on eight prosecution and eight defense witnesses.
It says Kealoha was in the far left lane of the H-1 freeway airport viaduct when Miller began tailgating him. Miller, who had a blood-alcohol level twice the legal limit, then moved to the left shoulder to give a "stink eye" as they drove side by side.
Miller drove ahead and motioned for Kealoha to pull to the side. Both men exited their cars. Kealoha approached Miller -- who gave no indication of being an officer -- and the two began grabbing or pushing each other before a "visibly angry" Kealoha gave a hard push that sent Miller to his death.
One defense witness saw Miller throw a punch; another, changing an earlier statement, felt Miller fell due to a "blocking" push. Eight witnesses saw the push, four said Kealoha appeared angry, and one testified that Miller had a panicked look.
The judge said the eyewitness accounts were very consistent and the evidence is overwhelming Kealoha acted recklessly.
Choy noted he once issued a restraining order against Miller, finding him potentially violent and threatening.
He said he discovered mid-trial that he and the officer attended the same school when both were 12, and disclosed the fact. But the judge said he didn't recall Miller.
Minors' court records
may be openedBy Star-Bulletin staff Judge Darryl Choy's decision to release portions of Gabriel Kealoha's juvenile court record may be a sign of things to come.The state Legislature this year passed a bill that will open legal records of minors 14 or older if they committed an offense that, for adults, would:
Be first- or second-degree murder, or first-degree attempted murder.
The law will also apply if a juvenile's crime resulted in serious bodily injury to the victim.
Court proceedings for those 16 and older also would be open under similar conditions. Judges in both instances could maintain confidentiality if they find a case has "significant and compelling circumstances."
Gov. Ben Cayetano intends to sign the measure, his staff said.
Lawmakers said the intent is to balance the rehabilitative approach of the juvenile justice system with the public's waning confidence in it. The bill also is meant to send a message to juvenile offenders that their actions will be treated seriously.
Critics, though, see the bill as an example of the continuing erosion of the system.
"What's going to be at stake very quickly is whether we want to give up on the idea of juvenile justice entirely, and just go to a system where we hold 7-year-old children accountable to adult standards of behavior," said criminologist Meda Chesney-Lind, a University of Hawaii professor.
Deputy Public Defender Susan Arnett said Choy's decision was the first she could recall for a juvenile case that had not been waived to adult court.
She said her office opposed the bill, partly since the children of well-known parents would be singled-out by the news media.
The idea of Family Courts arose in the 1940s and 1950s as a protective setting where the interests of minors will be looked after judicially, she said.
Consequently, juvenile offenders do not have the same legal rights as adults.
"So now they're being treated more and more like adults in Family Court, but they still don't have some of the most basic rights, the most basic of which is the right to a jury trial," she said.
Arnett felt treating minors as adults may take them off the streets temporarily, but does little for rehabilitation.
"We pretty much know that that's not particularly effective," she said.
