Sunday, August 14, 2011


Star-Advertiser op-ed mis-states facts on Aloun trial

by Larry Geller

It’s not unusual for newspaper editorial pages to run stories or letters that fit one ideology or another, or a particular “belief system,” without bothering to perform even elementary fact-checking. Hawaii’s newspapers have been no exception.

Today’s paper is a perfect example. An op-ed written by Kioni Dudley on the aborted Aloun Farms human trafficking trial misstates what happened in the courtroom. And the SA would have had no trouble checking on it—their experienced court reporter Ken Kobayashi was there every day of the short-lived trial. The article  begins:

Most people in Hawaii were stunned by recent news that all charges of human trafficking against Alec and Mike Sou had been dismissed "in the interest of justice."

This article explains why that happened.

The news media painted the 44 Thai workers as "impoverished peasants." Not true. …

[Star-Advertiser, Sou brothers were the real victims, 8/14/2011]

The article goes on to make a case that may or may not have come out in the courtroom, but we’ll never know.

In fact, the case was dismissed because of a fatal and unfortunate error by one of the Department of Justice attorneys, not for any of the reasons Dudley cites.

Through the discovery process, the defense team learned that attorney Susan French had misinformed the original grand jury. She had said that taking recruiting fees was illegal, but it turned out that during the time frame of events relevant to the trial, 2003-2004, recruiting fees were not yet illegal. That happened later.

It was a big goof, and it resulted in the case being dismissed in short order, at the request of the prosecution, not because Thai workers were or were not impoverished..

Nothing that Dudley asserts in his article had anything to do with it, yet the paper ran the story. There are points in his article that one might either accept or quibble with, but it is irrelevant—they will not come up before a jury to review.

In fact, the Sous are indeed innocent. They are innocent because our system of justice has a presumption of innocence until someone is found guilty, not because a judge or jury found them innocent. The facts in the case were never tested. The evidence on either side did not get to the jury to decide.

Dismissing the case was appropriate and inevitable in view of the error made by the prosecution. That’s what happened. That’s all that happened.

It seems that one can trust our daily newspaper’s editorial pages to contain as much truth as the full-page ads they run suggesting cures for one or another disease, if only the reader would buy the product. Yes, I believe a responsible newspaper would vet its opinion pages as well as the advertising it accepts. It’s a matter of trust on both counts, and the Star-Advertiser fails the truth test, as did its predecessors.


Kioni predicted this dismissal outcome over a year ago based on the analysis outlined in his op-ed. No other major media covered the Feds visa dynamic and the prosecutorial overreach, and the anti-human trafficking crew was way beating the drums of guilt. Gotta go with Kioni on this one since he was the only one dealing in hard facts from the beginning. If the case wasn't so groundless the Feds would have been granted a continuance. Can you see the Feds not getting one if there was the slightest chance of them covering up making that much A? Of course not.

So humble pie Larry. We all need to tighten up on our investigative journalism. I trust and value your reporting more than the HS-A, and really appreciate all the Hawaii indi-bloggers. Keep pushing the boundaries, the public needs your good work.

Thanks for your kind words, but no humble pie. If Kioni predicted that the grand jury was misinstructed, he should have notified someone. That is what stopped the trial, not anything else. Don't get sucked in to protestations of innocence (or guilt, for that matter).

The grand jury hands down indictments based on the information presented to it. My best understanding, after speaking with attorneys, is that there could be no trial, no "continuance" or anything else, given that the grand jury process was faulted. So there is no longer a trial to continue.

The dismissal of the case had nothing to do with what Kioni or I or anyone else might think or know about the situation. It had to do with a misinformed grand jury.

Good point and certainly technically. But courts are not vacuums nor devoid of agendas and politics. There are reasons those charges were filed, there was a background that informed the situation, the visas were a major player in what unfolded and the misinforming of a jury occurs because of a variety of specific reasons under which the Feds had no info, wrong info and overreached. We'll see if they try to refile. The HR had an interesting dig on evidence production... Federal Charges Over 'Bizarre' Video Never Detailed in Aloun Farms' Alleged Forced Labor Trial: (Since the merger have to look even to HR for info. Yikes!)

The case cannot be refiled because it was dismissed "with prejudice." The Sous are off the hook on these charges forever in a criminal proceeding, is my understanding. The only option for the workers would be civil suits.

Malia is doing an outstanding job over at Hawaii Reporter on this issue, IMHO. The video issue was one of the major points that knocked out the plea agreement. It was also shown to the jury before the case was dismissed, but there was no testimony related to it. I suppose that would have come later, had there been a later.

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