It now looks like there is a good chance all three defendants in the killing of the Kaena Point albatrosses will walk away with no jail time and clean records.

The adult defendant, Christian Gutierrez, who was 18 at the time of the killings, made a plea deal Thursday in the courtroom of Environmental Court Judge Jeannette Castagnetti.

According to the terms of the plea deal, Gutierrez could face up to a year in jail plus thousands of dollars in fines. But his attorney Myles Breiner is aiming for is a deferred acceptance of his plea in hopes of that Guiterrez can avoid prison time.

Judge Castagnetti will decide in June whether to defer the plea or sentence Gutierrez. By following the terms of a deferred plea, Guiterrez could end up with clean record.

The cases of the other two defendants, Carter Mesker and Raymond Justice, are being handled confidentially by the Family Court because they were 17 when the crime occurred. They were not identified in public court documents until later.

Laysan Albatross on nest Kaena Point. 7 feb 2017

A Laysan albatross guards a nest at Kaena Point last month.

Cory Lum/Civil Beat

As part of his plea deal, Gutierrez agreed to cooperate in the investigation and prosecution of the other two suspects but even if he gives damning information about them, it’s unlikely they will be sent to the Youth Correctional Facility in Kailua. Both Mesker and Justice will turn 19 later this year and age out of Family Court ‘s jurisdiction. That means they cannot be sent to the youth facility or referred to an adult prison.

That’s disappointing because the killings of 15 adult Laysan albatrosses at Kaena Poing Dec. 27, 2015 appears to have been premeditated. Investigation records reveal the three youths arrived at their Kaena Point camping site the night of the massacre hauling along a baseball bat, an air rifle and a machete — the weapons they used to kill the birds.

At the time, each of the defendants was a current or past student at Punahou School. They knew about the location of the Kaena Point albatross nests because some of them were taken to the refuge on field trips by their Punahou teachers. All Punahou fifth-graders go to the albatross refuge as part of the fifth-grade curriculum.

It appears the albatross killings that night were methodical, not a spur of the moment event. Investigation reports say the widespread location of the carnage shows it took some time to kill 15 adult Laysan albatrosses and destroy 17 albatross nests and smash all the birds’ eggs as well as to dismember some of the dead birds in order to remove their identification tags.

In addition, there appears to have been little remorse after the killings. At a party at a Diamond Head house after the massacre, the defendants bragged about killing the birds to Punahou School friends. They showed off the birds’ identification tags and posted pictures of the dead creatures’ bodies on social media.

That’s how so many people know so much about the case. The albatross killers “outed” themselves. Some students at the party were horrified and told their parents. The parents reported what their children told them to Punahou administrators.

As part of the deal, Gutierrez pleaded no contest to five misdemeanor and petty misdemeanor counts instead of the 19 charges to which in December he pleaded not guilty. He originally faced 15 animal cruelty counts but he ended up pleading no contest to only one of the animal cruelty counts.

Christian Gutierrez in prelim hearing Judge Garibaldi’s courtroom. Albatross. 27 dec 2016

Christian Gutierrez has reached a plea agreement with prosecutors that likely will result in no jail time and a clean record for his part in the killing of 15 albatrosses. He’s agreed to testify against two other young men in the case.

Cory Lum/Civil Beat

Lindsay Young was disappointed that all but one cruelty count was dismissed.

“That reduces the severity of the crime,” she said.

Young is the executive director of Pacific Rim Conservation, a nonprofit that manages the Kaena Point albatross refuge.

Gutierrez was also ordered to write a letter of apology to Young’s nonprofit and to pay a fine of $3,400 to the organization.

After Young heard about the letter of apology in court, she scoffed.

When a court forces a person to write a letter of apology, how meaningful can it be? And how much compensation is $3,400 when an investigation report says the bird killings and nest and egg destruction caused more than $200,000 in damage to the continuing research at the albatross refuge.

Suzanne Case, the chair of the Department of Land and Natural Resources, sent out a media release the day after Gutierrez’s plea deal to express her disappointment.

“This crime is absolutely heinous. It combines appalling animal cruelty with long-lasting devastation of a breeding population of vulnerable and protected majestic seabirds.”

Case says the DLNR should have been consulted about the plea deal because it is the state agency responsible for the albatross colony and the landowner where the incident occurred at the Kaena Point Natural Area Reserve.

But the prosecutor’s office says it does not routinely consult other investigating agencies when it is involved in plea deals.

And you have to wonder — if DLNR is the agency responsible for the Kaena Point albatrosses and the land owner of the refuge — why chair Case did not at the beginning urge the state attorney general to prosecute the alleged crime.

Case did not answer this. Her office referred the question to the attorney general’s office. Joshua Wisch, spokesman for attorney general’s office says the AG’s office was never asked by DLNR to prosecute the case.

Then, later in the day I received another emailed statement from DLNR spokesman Dan Dennison to explain why the AG was never asked to get involved.  “It has always been standard practice in all counties to refer criminal cases to the county prosecutor,” he wrote.

The city prosecutor’s office, which handled the case, dragged its feet for a year before arresting Gutierrez.

Prosecutor Keith Kaneshiro initially assigned the albatross case to deputy prosecutor Katherine Kealoha.

But the albatross case and other cases Kealoha was handling stalled for months after federal investigators began questioning Kealoha to see if she had offered special favors to defendants in any of her cases. They found no wrongdoing by Kealoha in her cases but Kaneshiro transferred the albatross case to deputy prosecutor Jan Futa.

Futa will not discuss the possibility, but she could try to waive the juveniles to adult court where there’s a remote chance they could be sentenced to a few months in jail. But waiving juvenile cases to adult court is not easy.

Attorney Timothy Ho says, “In an animal cruelty case like this, if a juvenile defendant has no prior history with the family court, it would be difficult for the minor to be waived to adult court unless the family court found that the safety of the community required that the person be subject to judicial restraint for a period extending beyond the person’s minority.”

Ho is chief deputy of the Office of the Public Defender.

“This crime is absolutely heinous. It combines appalling animal cruelty with long-lasting devastation of a breeding population of vulnerable and protected majestic seabirds.” — DLNR Chair Suzanne Case

In her emailed statement, DLNR chair Case also took to task the Environmental Court where Gutierrez’s case is being adjudicated.

The Environmental Court system was created by the Legislature in 2014. Since it launched in July 2015, it has handled 2,829 cases. Most of the cases are for more minor violations such as catching certain fish out of season or drug and alcohol violations in state parks.

It’s unusual for the Environmental Court to handle major criminal cases such as the albatross killings. To date, there here have been 30 criminal cases referred to Hawaii’s environmental circuit courts statewide.

Suzanne Case wrote, “The tone this case sets can have far-reaching impacts on the security of our wildlife and natural resources. It is critical that the outcome of this case sends a strong message to the public, that violations of laws protecting our vulnerable native wildlife and acts of illegal take and destruction will not be tolerated.”

But so far, the message sent to the public is that the protection of vulnerable native wildlife is not being taken as seriously as the protection of pet dogs and cats whose abusers have faced huge fines and even jail sentences in Hawaii’s courts.

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