Deputy Prosecutor Janice Futa will ask for the maximum penalty for Christian Gutierrez at his sentencing Thursday in the killing of at least 15 Laysan albatrosses at Kaena Point.

That would mean a year in prison and up to $7,000 in fines, as well as restitution to Pacific Rim Conservation, the non-profit that manages the albatross colony.

Gutierrez’s attorney, Myles Breiner, will argue for a deferred acceptance of his clientʻs no contest plea in the hope that Guiterrez can avoid prison and have his crime expunged from his record.

Gutierrez is a 19-year-old Punahou School graduate who is attending New York University.

Christian Gutierrez albatross Kaena Point. 27 dec 2016
Christian Gutierrez is scheduled to be sentenced Thursday for his role in the albatross killings. Cory Lum/Civil Beat

Futa said she is asking for the maximum penalty for Gutierrez because of the cruel nature of the crime against the defenseless albatrosses, who are “peaceful and trusting birds and do not recognize predators.” 

Laysan albatrosses are federally and internationally protected seabirds. The adult birds are as large as a human toddler and can live for more than 60 years. They nest on the ground and remain on their nests to protect their eggs and chicks no matter what approaches them.

In a case that is generating national attention, investigators say the birds were bludgeoned or hacked to death with a bat, and a machete, and shot with a pellet gun. Some of their eggs were thrown out of the nests or crushed where they were incubating.

One of the dead albatrosses in a nest. Courtesy of Department of Land and Natural Resources

“Not satisfied with killing the birds or destroying their nests and eggs, the human predators continued the desecration by cutting off the albatrosses’ legs on which they wore identification bands, thereby destroying the ability of the colony’s caretakers to accurately quantify the loss and identify the individual birds killed,” Futa wrote in her sentencing recommendation.

Two other defendants were dealt with in Family Court because they were 17 at the time of the crimes. The albatrosses were killed during the late night and early morning hours of Dec. 27-28, 2015.

The perpetrators also destroyed bird sound recorders and monitoring cameras that they mistakenly thought was security equipment that might help identify them.

“In a further attempt to hide the atrocities committed that late evening/early morning, the perpetrators tied many of the dead albatrosses together and threw them off the point into the ocean,” Futa wrote.

“The only protection for the peaceful and trusting albatross that night was human decency, empathy and conscience. Unfortunately, those attributes were lacking in any of the perpetrators.”

Futa said Guiterrezʻs request for deferral of plea should be denied and that he should be sentenced to one year imprisonment for each of the three misdemeanors to which he pleaded no contest, and 30 days for each of the two petty misdemeanors, the terms to be served concurrently.

Myles Breiner, the attorney for Gutierrez, included this photo from a video of what he described as a machete-wielding “R.J.” at Kaena Point in the defense’s sentencing memorandum. Screen shot

“In balancing the possibility of a ‘clean slate’ (for Gutierrez) with that of the ends of justice and the welfare of society, there is no question that the scale weighs in favor of denial of the request for deferral and imposition of the maximum penalty available,” Futa wrote.

The sentencing is scheduled before State Environmental Court Judge Jeannette Castagnetti.

In a court document filed Monday, Breiner urges the judge to grant Gutierrez a deferral because “he has accepted full responsibility, expressed sincere remorse for his conduct and has received the majority of the public backlash for his participation in the offense. Mr. Gutierrez’s name and picture will forever be associated with this crime.”

Breiner said Gutierrez is an ideal candidate for a deferral because of his youth and because he has no prior record. He said Gutierrez has sought mental health treatment and is unlikely to offend again.

Breiner said Gutierrez killed two of the 15 slaughtered birds but he was not “architect of this incident.” Breiner identified the juvenile defendant he called “R.J.” as the ringleader of the crime.

Breiner said Gutierrez did not cut off the legs of the birds or tie up the birds before tossing them in the ocean. He wrote: ” R.J. boasted about the tags he retrieved from the albatross birds, R.J. posted pictures of the albatross birds tied up on social media, and R.J. bragged about his participation in the event.”

In his sentencing request, Breiner shows two pictures of R.J., with his face redacted, brandishing a machete.

In an earlier document, Breiner said he  will “play a video of ‘RJ’  with the machete” and will ask that the courtroom be cleared of spectators during the showing of the video to protect the identify of the juvenile.

On March 16, Gutierrez pleaded no contest to five criminal misdemeanor counts, including theft, criminal property damage and animal cruelty. That was a reduction from the 19 offenses he originally faced, which included felony theft and 15 counts of animal cruelty.

As part of the plea deal, he agreed to cooperate with the investigation.

“This is not the background of a naïve follower but rather an intelligent, self-aware person with initiative.” — Deputy Prosecutor Janice Futa, referring to Christian Gutierrez

The cases of the other two defendants, Carter Mesker and Raymond Justice, were handled confidentially by the Family Court. They were identified later in public court documents.

Birney Bervar, the attorney for Justice, declined to respond to Breiner’s characterization of his client’s role in the killings. Bervar wrote in an email: “My client’s juvenile proceedings are being conducted in Family Court, where strict confidentiality laws prevent me from commentary.”

On the night of the crime, the three defendants were camping at Kaena Point Natural Area Reserve with three other friends. Breiner said R.J. secured a state permit to be able to drive into the area.

“The malicious activity was planned for that fateful camping trip” because the perpetrators entered the natural area reserve armed with “a machete, an air rifle and a bat,” Futa wrote.

Seventeen albatross nests and 17 eggs were destroyed.    

After the killings, one of the perpetrators showed friends the identification tags he had cut off albatrosses’ legs and boasted about the number of birds he had killed. The other two talked about the dead albatrosses at a party and showed pictures on social media.

Some Punahou students at the party told their parents, who then reported the bird killings to the school. At the time of the incident, all of the defendants were current or past students at Punahou. The school cooperated with investigators. None of the perpetrators attends Punahou now.

Futa said the crime has sparked an outpouring of emails and phone calls to the prosecutorʻs office expressing outrage at the crimes and opinions on how the defendants should be sentenced.

A Kaena Point albatross with a chick. The birds will stay at their nests no matter what approaches them, researchers say. Courtesy: Pacific Rim Conservation

In her sentencing recommendation, Futa said Gutierrez’s age is no excuse, nor is the contention that peer pressure forced him to participate.

 “Defendant was the oldest of the three perpetrators,” Futa wrote. “By all reports, he had a supportive and caring family. He graduated from one of the best high schools in the state. At the time he committed these crimes, he was attending a top rated college in New York City. This is not the background of a naïve follower but rather an intelligent, self-aware person with initiative.”

She said that on the night of the crime no one turned to the others to try to stop them from continuing and that no one walked away from the killings in disgust. “Rather, the mayhem continued with all three participating.”

The following people are expected to speak at the sentencing to describe the harm they as individuals or their organizations have suffered because of the death of the albatrosses:

Lindsay Young, executive director of Pacific Rim Conservation. Young is expected 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 has said she wants Gutierrez imprisoned and required to pay a portion of the $200,000 she estimates her organization has lost in grants and future research because of the deaths of 10 percent of the Kaena Point albatross breeding population. The birds now missing and dead had been under observation in various long-term scientific studies.

• Suzanne Case, chairwoman of the state Department of Land and Natural Resources.  Case will outline the impact of the crime on the Kaena Point National Area Reserve, which is under the supervision of her state office.

• William Aila, former chairman of DLNR. Aila is a Native Hawaiian and cultural practitioner. He has submitted written testimony to point out how the killing of the albatrosses has damaged the community and was an affront to the Hawaiian culture.

The prosecution also plans to show a video about Kaena Point Natural Area Reserve to point out its environmental and cultural significance.

Read the prosecutor’s sentencing memorandum below:

Read Gutierrez’s sentencing memorandum below:

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