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Correction: A previous version of this story reported on a Facebook conversation between a New York University student journalist and a person she thought was the Christian Gutierrez who has been charged in the albatross case. Upon further checking, Civil Beat couldn’t verify that the person in the Facebook conversation was the same Christian Gutierrez.
Christian Gutierrez, the adult defendant in the 2015 Kaena Point albatross killings, is expected to be sentenced by First Circuit Court Judge Jeannette Castagnetti on June 1.
As the day nears, the Honolulu Prosecutor’s Office and others are working quietly behind the scenes to make sure that the 19-year-old Gutierrez does not emerge with a clean record.
“We will request a sentence that will impress upon the defendant the seriousness of what he has done and the damage caused by his actions. We oppose a deferral,” said Honolulu Deputy Prosecutor Janice Futa.
Gutierrez’s attorney, Myles Breiner, is aiming for a deferred acceptance of Guttierez’s plea, in hopes that his client can avoid prison time and have his crimes expunged from his record.
In a plea deal March 16, Gutierrez, a Punahou School graduate who now attends New York University, pleaded no contest to five criminal misdemeanor counts, including theft, criminal property damage and animal cruelty. That’s a reduction from the 19 counts, including felony theft and 15 counts of animal cruelty, he originally faced.
As part of the plea deal, he agreed to cooperate with the investigation.
The case is being tried in the state’s Environmental Court.
The maximum sentence Castagnetti can impose on Gutierrez for the misdemeanor counts is one year in prison, a $2,000 fine or both.
The other defendants in the albatross-killing cases, Carter Mesker and Raymond Justice, have already settled their cases in Family Court. They were 17-year-olds when the crimes occurred, and details of their records as juveniles are sealed. They now have a clean record as far as law enforcement is concerned.
In an unusual attempt to influence the sentencing of Gutierrez, Futa is seeking court permission for the judge to go on a four-wheel drive expedition to the remote Kaena Point Natural Area Reserve.
She wants the judge to see up close where, in the late evening and early morning hours of Dec. 27-28, 2015, at least 15 Laysan albatrosses were killed with a pellet gun, a machete and a baseball bat. Seventeen albatross nests and 17 eggs were also destroyed. The feet were cut off many of the birds to remove their identification tags.
One of the perpetrators showed off the identification tags at a party. The other two talked about killing the birds at the party on social media.
Laysan albatrosses are internationally and federally protected seabirds.
In a court document filed recently, Futa explains that since Gutierrez pleaded no contest, there was no trial. The judge was denied the opportunity to hear a detailed description of the Kaena Point refuge and to learn more about the unique character of albatrosses.
Albatrosses are large birds the size of a human toddler. They make their nests on the ground and they remain in place to protect their eggs or chicks no matter what is going on around them.
Futa says a visit to Kaena Point is necessary to visualize the large expanses of difficult terrain the defendants had to hike in the dark to reach the widely separated nests of the defenseless birds.
“The State could describe the physical attributes of a Laysan Albatross, and describe their character as ‘trusting,’ but that would not adequately describe the majesty of these birds in flight, nor their trusting nature which allows one to get close enough to touch them,” Futa wrote.
“The State could assert that the Kaena Point Reserve is ‘special,’ but that does not begin to convey what one experiences when physically in the Reserve.”
Futa does not say this, but such a visit might offer the judge additional evidence that the bird killings were intentional, not a spontaneous, spur-of-the-moment event. Investigators say the killings went on for more than five hours, and only stopped a few times when the defendants returned to their campsite, about a 15-minute walk from the refuge
They were camping at Kaena Point with three other friends. All the campers were students or past students at Punahou School. None is at the school now.
Defense attorney Breiner on May 15 asked the judge to deny Futa’s request for a site visit to Kaena Point, saying it would prejudice his client’s case.
In a court document, Breiner says such site visits normally happen only during the trial phase of a case, not when a defendant is being sentenced. Breiner argues a Kaena Point visit would be expensive, confusing, time consuming and create a “media fiasco.”
“Pictures of the scene will be sufficient for sentencing purposes,” he wrote in the court document. To make his point, he included an exhibit of photos of the dead albatrosses, damaged nests with bloody feathers, smashed albatross eggs and pictures of the birds’ hacked off feet — pictures that up until now have been sealed as confidential evidence.
Court documents show that Breiner put the pictures in the public domain even after saying in a court document the pictures could “place the defendant’s (Gutierrez’s) safety in jeopardy.” Breiner asked the judge to seal his motion before he made it. The judge said no. So he released the pictures anyway.
Breiner declined to speak to me for this story.
In another motion, Breiner says Gutierrez intends to show at his sentencing a public service announcement he made to demonstrate his “remorseful disposition on this incident.”
Lindsay Young, executive director of Pacific Rim Conservation, the nonprofit that manages and conducts scientific research on the Kaena Point albatross colony, has seen Gutierrez’s video .
She says the video — a generic work about albatross conservation, not about the Kaena colony — is marred by many factual errors. She says it wrongfully uses the name of her nonprofit to make it seem like she is associated with the project.
She says Gutierrez has never spoken with her.
Young scoffs at the idea of Gutierrez shooting this video to show remorse. “I think he is an aspiring filmmaker who is out to further his own agenda,” she says. “If you are truly remorseful, you don’t make a video, you make a simple apology.”
Young plans to speak at the sentencing, delivering what’s called a “victim impact statement” to explain how the killings have ruined one of the best long-term databases on albatrosses anywhere in the world. She will also speak about her personal loss as a researcher who has worked closely with the albatrosses for 14 years and knows each bird as an individual.
Young says she wants Guiterrez imprisoned and required to pay a portion of the $200,000 her organization estimates has been lost in grants and future research because of the loss of 10 percent of the Kaena Point albatross breeding population. Those birds have been under observation in various scientific studies.
Suzanne Case, the Department of Land and Natural Resources chair, also believes Gutierrez should be sent to jail and do “significant community service.”
“Sentencing is up to the Judge. Either way, our concern is to ensure an act of this type won’t be repeated by this person or anyone else,” Case wrote in an email.
DLNR will deliver its own victim impact statement at the sentencing.
In another court document, Breiner wrote that he intends to show a video at the sentencing of one of the juvenile defendants who he names as “R.J.” brandishing a machete at Kaena Point. Breiner argues the video is to make clear to the court that Gutierrez was not the ringleader of the incident.
Gutierrez is now enrolled as a sophomore film student at New York University’s Tisch School of the Arts, which boasts of famous alumni such as Alec Baldwin and Lady Gaga.
NYU spokesman John Beckman said in an email Friday that NYU is prohibited by federal law from discussing what if any disciplinary action might be taken against Gutierrez
Beckman added, “I will say that the incident as described is shocking, disgraceful and senseless.”
NYU freshman Jemima McEvoy wrote about Guiterrez’s plea deal in the albatross killings for NYU’s independent student newspaper, Washington Square News. McEvoy is the paper’s news editor
Speaking as a NYU student, not as the paper’s news editor, McEvoy said, ”NYU should inflict some sort of punishment on Gutierrez. There have to be repercussions for this attack on the birds as well as psychological counseling to help him. But this should not wreck his life. This should not define him. He is only a kid.”