We don't know where exactly the right to a trial by jury came from. The ancient Greeks had a massive number of citizens - sometimes up to a thousand - sit on a single jury and the Romans had a form of citizen participation in trials too. But our jury trial is a direct descendant from England.
The United States inherited the tradition from the English colonies and incorporated it into the federal Constitution. Each state more or less took the lead from the federal Constitution and made it part of their declaration of rights too.
But the way trial by jury came to Hawaii is a little different. It came directly from the English - a particular Englishman, in fact. Lord Byron, cousin to the famed poet of the same name who epitomized the Romantic movement, arrived in the islands in 1825 and is considered the man who introduced the principle.
Lord Byron was a captain with the Royal Navy on a sad mission. His ship carried the bodies of King Kamehameha II and his wife. The king and queen were the first royal Hawaiians to go abroad. While the royal couple toured London, they were exposed to the measles and died because they had no way to fight the Western disease. Their remains are buried on the grounds of Iolani Palace in the corner near King Street.
When Lord Byron got to the islands, he was invited to address a small group of chiefs about the British government. The captain did not want to dictate how the kingdom should be run, but he did come up with a list of suggestions.
He advised that "no man's life be taken away except by consent of the king, or the regent, for the time being, and of twelve chiefs." This suggestion soon developed into a fully formed right to a jury trial in death-penalty cases.
The first murder trial took place in 1826. The jury was selected by none other than Queen Ka'ahumanu. The details of the evidence and even the name of the accused have been lost, but the jury did not convict him. The jurors doubted that the accused really intended to kill. The unknown defendant was acquitted. Unfortunately, the governor of Oahu felt otherwise and ordered the execution anyways. The accused was publicly hanged.
The judicial system gradually improved. By the time Kamehameha III ascended the throne in the 1840s, the right to a jury trial extended beyond capital cases. Any offense with a possible fine exceeding $100 had to be tried by a jury.
But what kind of jury? The king passed a law that determined the composition of juries based on the status of the litigants. If the parties in the lawsuit were foreigners, then the jury had to be made up entirely of foreigners. If they were natives, then the jury had to be native. If it was a foreigner versus a native, then the jury had to be split equally.
A dispute quickly arose as to whether an island-born or naturalized white litigant was a "foreigner." In a series of cases to the early Supreme Court of the kingdom, it was resolved that these subjects were considered "foreigners," even though they had been naturalized citizens of the Hawaiian kingdom. In other words, "native" meant Native Hawaiian. The division now depended on ethnicity.
Ethnically divided juries continued long after the kingdom. The practice remained in effect well into the 20th century. The infamous Massie trial highlighted the racial tensions in territorial Hawaii.
In that case, Mainland haoles were horrified to learn that "native" jurors acquitted dark-skinned defendants accused of raping a white woman on the beach at Waikiki in the 1930s. They were equally horrified when another jury convicted the conspirators who kidnapped and murdered one of the acquitted defendants. Like the governor in power for the first murder trial, the territorial governor disagreed with the jury and commuted the sentence from 10 years hard labor to one hour at Washington Place.
One would like to think that those days are over, but the cases from the 1840s haunt us even to this day. This summer the trial of federal agent Christopher Deedy sparked a debate about "locals" and "haoles." Some considered the fatal shooting of a local male at the Waikiki McDonalds a modern-day Massie trial.
The jury was made up of folks from the islands and some born on the Mainland. One juror later spoke out and said that it was a diverse group. In the end, the jury was hopelessly divided, and the only thing that was hung was the jury itself. Deedy may be retried next year. No matter what the verdict will be, the conflict and the right to a jury trial will live on.
* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is email@example.com. "The State of Aloha" alternates Fridays with Ilima Loomis' "Neighbors."