Change of venue sought in 2019 campground sex assault case

  • Deputy Public Defender James Greenberg has motioned to move a high profile sexual assault trial from District Court Judge Robert D.S. Kim's courtroom. (Laura Ruminski/West Hawaii Today file photo)

  • Zeth Browder

A motion to recuse a judge in the trial for a 21-year-old man accused of sexually assaulting an elderly woman in 2019 at a Kawaihae campground will be heard early next month.

Trial was set to begin Nov. 30 for Zeth Browder in Third Circuit Chief Judge Robert D.S Kim’s courtroom following four continuances, however, Deputy Public Defender James Greenberg recently filed a motion to have the case heard by Judge Wendy DeWeese.

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In his motion to disqualify or recuse the assigned court due to conflict of interest, Greenberg contended “the Honorable Robert Kim has a personal bias or prejudice against him in which Judge Kim’s impartiality might reasonably be questioned.”

Greenberg additionally declared in a Sept. 14 jury-waived trial concerning a different first-degree sexual assault case Kim was angered by the form of Greenberg’s questioning.

He states a heated exchange between him and Kim took place in which Greenberg was threatened with sanctions and the loss of his license to practice law.

Greenberg contends in yet another sexual assault trial he was “told in a strict manner that he would be sanctioned and even arrested if he didn’t follow the procedural orders of the court.”

Greenberg, in the motion, wrote that in his over 25 years practicing law in Massachusetts, he has never been reprimanded in this manner.

“Furthermore, it should also be noted that Judge Kim admonished counsel in the past that he should not practice law in his courtroom if he did not follow his rules,” the document states.

Because of this reprimand, Greenberg said he submitted his letter of resignation to the Public Defenders Office effective Dec. 31.

In the Browder case, Greenberg stated that due to Kim’s bias against him, his client cannot get a fair trial, nor can he zealously represent Browder at trial in Kim’s courtroom.

DeWeese will consider the motion on Nov. 3, which if granted would send Browder’s trial to her courtroom.

A sanction hearing for Greenberg was held Sept. 22 in which he was provided notice of violations of professional conduct, failure to follow court instructions, disrespectful behavior, lack of civility and lack of respect to the tribunal.

Greenberg was fined $500.

“I asked my office to appeal the $500 sanction because Kim didn’t like the form of my questions on cross-examination,” said Greenberg. “I’ve never heard a state judge fining a state public defender nor could I find in my research any other instances of this.”

The case is being prosecuted by the Honolulu City and County Prosecutors Office because of an undisclosed conflict of interest with the Hawaii County Office of the Prosecuting Attorney. The Honolulu office had not filed a response to the motion as of press-time Wednesday.

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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.

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