BJ Penn has filed a motion asking Hilo Circuit Judge Peter Kubota to recuse himself from hearing any of Penn’s domestic-abuse related cases.
Penn, who turned 47 on Dec. 13, also submitted a four-page handwritten letter to the judge on Monday objecting to an order that he be examined by three mental health professionals to determine whether or not he is fit to stand trial on those charges.
The retired former Ultimate Fighting Championship lightweight and welterweight champion, whose legal name is Jay Dee Penn, has four domestic abuse-related cases, all misdemeanors, presided over by Kubota. Those include domestic abuse on May 25 and 26, violation of a temporary restraining order on June 12, and violating an order for protection on Sept. 15.
The victim in all four cases is Penn’s 79-year-old mother, businesswoman Lorraine Shin.
Those cases are all on hold pending a court-ordered examination for fitness as well as penal responsibility — whether Penn had the mental capacity at the time of the alleged offenses to understand and appreciate the wrongfulness and illegality of his alleged actions.
None of the court-ordered mental exam reports in that case have been filed, and a hearing is scheduled for 9:30 a.m. on March 2 for the return of those reports.
In addition, Penn has filed a motion to discharge his court-appointed defense attorney, Alan Komagome. Penn’s motion stated he has retained private counsel to defend him.
The motion doesn’t identity that attorney, but it’s possibly Honolulu attorney Myles Breiner, who is defending Penn on a separate third-degree assault case before Hilo Circuit Judge Henry Nakamoto.
The victim in that case is Albert Jardine, a 45-year-old man who told police that Penn punched and kicked him multiple times in the early morning of Nov. 4 at a Wainaku-area residence.
Jardine was treated for minor injuries at Hilo Benioff Medical Center.
Penn hasn’t yet entered a plea in the misdemeanor assault case, but is scheduled to do so at 8:30 a.m. Feb. 3.
In multiple documents, Penn noted an Oct. 20 hearing in which he entered not guilty pleas in the domestic abuse cases. During that hearing, Deputy Prosecutor Nathan Wersal asked the judge to order a mental examination for Penn. Komagome didn’t object, and Kubota ordered the exam.
Penn at that time requested that Komagome be relieved of his duties and that Kubota recuse himself, according to court records.
Kubota declined to relieve Komagome, noting that Penn — who had appeared in court numerous times without legal counsel — needed representation. The judge also told Penn if he feels he’s not being treated fairly to file motions.
Shin has said in court that she believes Penn suffers from Capgras syndrome, a psychological disorder in which the sufferer thinks close associates have been replaced by lookalike imposters.
Penn has said on social media he believes an identical imposter has taken the place of his mother, his brothers and others around him. He also essentially made that claim in court in late June, asking Hilo Family Court Judge Jeffrey Ng to vacate the temporary restraining order his mother currently has against Penn.
Penn asked the judge to order “a supervised identity verification” for Shin, which Ng denied.
In his letter to Kubota, Penn said he respectfully objects “to any finding of unfitness, because there are no facts on the record showing any present lack of capacity.”
Penn cited Hawaii Revised Statutes 704-403 and the landmark 1960 U.S. Supreme Court case Dusky vs. U.S.
“The legal standard is Dusky — rational and factual understanding of the proceedings and the ability to assist in one’s defense,” Penn wrote. “The standard is satisfied on this record.”
Penn wrote that HRS 704 “does not authorize competency examinations based on discomfort, disagreement or demeanor.”
“No doctor has raised competency, no physician, psychologist or psychiatrist, has diagnosed … mental disease or defect,” he added. “Court opinion cannot substitute for medical evidence. Mental illness is not a matter of judicial notice or common knowledge.”
Penn requested in the letter that the “court deny any 704 orders and proceed with the case!”
All of Penn’s motions and the letter were filed pro se, meaning by Penn himself, without the assistance of an attorney.
Breiner didn’t return a phone call in time for this story.
Email John Burnett at jburnett@hawaiitribune-herald.com.
