A Kona Circuit Court judge on Wednesday granted a fourth trial continuance for a 20-year-old man accused of sexually assaulting an elderly woman last summer at a Kawaihae campground.
Third Circuit Chief Judge Robert D.S Kim granted Deputy Public Defender James Greenberg’s motion to continue the Nov. 17 trial of Zeth Browder to Nov. 30, 2021.
“I am kind of perplexed because the defense has asked three times to have a speedy trial. I moved heaven and earth to set this as the first trial,” Kim said before hearing arguments.
Hawaii Supreme Court Chief Justice Mark Recktenwald order suspension of jury trials on March 16. After devising a plan and holding a “mock trial” to ensure the safety of jurors, defendants and witnesses, Kim ordered jury trials to commence Nov. 17.
With a backlog of trials due to emergency orders suspending jury trials, Kim said he would be proceeding with cases with defendants who have been in custody the longest. Browder has been incarcerated since his arrest in June 2019 and was set to be the first jury trial to be held at the courthouse since March.
Greenberg argued for the continuance based on the procedures Kim put forth at the mock trial. Since the jury would be masked and socially distanced in the gallery, not the jury box, Greenberg said his client would be denied his constitutional right to face the jury, which would be behind him. He also said the masks would be partially covering jurors faces, which his client should be able to see.
“I think Mr. Browder has a very serious charge and his wearing a mask will make him look like the boogeyman,” said Greenberg.
Acknowledging the court’s “heroic” work on safety measures, Greenberg said the first trial with COVID-19 measures in place is an experiment.
“He (Browder) is facing 20 years,” Greenberg said. “I’m asking he not be the guinea pig.”
“The complainant is 80 years old and the state has no objection?” asked Kim, stating the next trial date was one year away.
Special Deputy Attorney General Kristen Yamamoto via teleconference from Honolulu had no objection to the motion, stating both the victim and chief witness are at high risk for contracting COVID-19.
Yamamoto is prosecuting the case because of an undisclosed conflict of interest with the Hawaii County Office of the Prosecuting Attorney.
Browder, appearing via teleconference from Hawaii Community Correctional Center, waived his right to a speedy trial, and Kim granted the motion.
Browder has been confined at Hawaii Community Correction Center in lieu of $166,000 bail since his arrest. He has pleaded not guilty to two counts each first-degree sexual assault and third-degree sexual assault and one count each first-degree burglary, kidnapping and tampering with evidence.
According to prosecutors and police, the female victim, reported that she had been sexually assaulted by a man who was also camping at Spencer Beach Park, a county facility in South Kohala. Police identified and subsequently charged Browder in connection with the alleged crime.