HILO — The Big Island’s elected prosecutor is stepping aside, at least for now, from prosecuting criminal cases arising from protests of the planned construction of the Thirty Meter Telescope on Maunakea.
Mitch Roth said Wednesday that he is “conflicting out” in those cases. An Associated Press article published Aug. 30 raised the issue of whether Roth has a conflict of interest. His 22-year-old son, Aaron Roth, works at NASA’s federally funded Jet Propulsion Laboratory, which is managed by the California Institute of Technology, one of TMT’s partners. A Caltech spokeswoman said everyone who works at the research facility is a Caltech employee.
Caltech is among a group of universities in California and Canada that make up the telescope company, with partners from China, India and Japan. They want to build the $1.4 billion telescope near the summit of Maunakea, a mountain some Native Hawaiians consider sacred.
Roth said he asked for formal opinions from the state’s attorney general and Office of Disciplinary Counsel, and the Hawaii County Board of Ethics, but so far none have been issued.
“We want to make sure justice is upheld and people can trust the justice system,” Roth said. “So in an abundance of caution, we’ve asked for the AG to handle these cases, at least the cases that have already occurred. We’re going to be looking for an opinion now from the county Ethics Board on whether there’s a conflict of interest or even the appearance of impropriety.”
Roth said there’s “a possibility” his office might resume prosecution of protesters if the Board of Ethics decides there’s no conflict, but it would have to be discussed with the attorney general first.
“My guess is we’re not done with this, and there will probably be more cases in the future,” Roth said. “We want people to feel, first of all, that they’re being heard, and that we’ll take a look at this. And depending on where the Ethics Board comes down on this, we’ll probably follow that.”
On July 17, law enforcement officers arrested 38 individuals, mostly kupuna, or elders, for obstructing Maunakea Access Road to prevent construction vehicles and workers from scaling Maunakea to build the next-generation telescope.
Nine entered not guilty pleas on Aug. 23 in Hilo District Court and have a court hearing to set trial dates on Friday. The remaining 29 have their initial court dates on Friday, as well.
Roth said all 38 cases are being turned over to the AG’s office.
In addition, two other protesters — who refer to themselves as kia‘i, or “protectors” of the mountain — were arrested for obstruction Sept. 6 for attempting to stop authorities from dismantling an unpermitted structure built by protesters at Pu‘u Huluhulu.
“I believe those will be turned over, too,” Roth said.
Roth told the AP he didn’t know his son was a Caltech employee, but added the NASA lab was so far removed from the TMT project, he didn’t think it presented a conflict.
He also said he didn’t think his wife’s employment with Subaru Telescope posed a conflict. But four legal experts quoted in the original AP story said they thought Roth should step aside because of a potential conflict or appearance of conflict.
“We believe that there is no conflict,” Roth said. “Nor prior to the … article that was written on this, we didn’t even believe there was an appearance of impropriety. However, because of the way the story was written and the lack of legal experts giving opinions to the contrary, we went back to the attorney general (and) we asked for an opinion. They did not give us a formal opinion. … In fairness to them, they thought I could have passed it on to my first deputy (Dale Ross) and conflicted myself out.”
Roth said the Office of Disciplinary Counsel gave him some cases to study and some material to read, but none conclusively game him a “clear yes” or “clear no” on whether he has a conflict or appearance of impropriety.
Krishna Jayaram, a special assistant to Attorney General Clare Connors, confirmed today the AG’s office will “take over the 38 protester cases arising from July 17.”
“It is unfortunate that these mere allegations of a conflict became newsworthy, and created an appearance of impropriety resulting in the local prosecutor, who most appropriately would prosecute these cases, having to send them to our office,” Jayaram said. “However, we understand Mr. Roth’s position, and we will be stepping into the role.”
The Associated Press contributed to this story.
Email John Burnett at jburnett@hawaiitribune-herald.com.