A criminal prosecution arrives with an institutional advantage: the state creates records as it moves.
Its witnesses testify into a transcript. Its exhibits acquire numbers. Its arguments become part of the proceeding. Its version of the event accumulates official form simply by being presented.
The defense has to create the answering record.
Cross-examination has to happen. Objections have to be made. Evidence has to be offered. A defendant’s account has to reach the jury somehow. Trial errors have to be preserved. When those acts do not occur, the imbalance survives the verdict. The state’s account remains in institutional form; the defense may survive only as a client’s memory of what his lawyer did not put before the jury.
That is the subject of this article.
In State of Hawaiʻi v. Lowndes, privately retained counsel represented Ekewaka Lono in a felony jury trial that ended without a conviction: the jury deadlocked and the court declared a mistrial. Lono credits counsel with one decisive success—the defense closing argument that, in his assessment, broke the state’s momentum and helped produce the hung jury.
The rest of the representation presents a harder record.
Lono reports an opening that introduced doubt about his own innocence, no cross-examination of the complaining tax official, no client testimony, no presentation of the preceding threat and pressure history he believed explained his state of mind, no mistrial motion after the prosecutor’s reported mock-pistol closing, and persistent pressure to plead despite repeated instructions that he wanted the case tried. He says that pressure culminated during deliberations, when a new petty-misdemeanor offer arrived and counsel continued pressing after Lono rejected it.
Those claims are not all the same kind of evidence. Some are transcript questions. Some are client recollections. Some live in the defense file. The article separates them accordingly.
Editorial anonymization: The lawyer is identified only as Retained Trial Counsel. The point is the conduct, the record, and the professional-responsibility questions. Do not use this article to identify or de-anonymize counsel or unnamed third parties.
Publication status: No disciplinary complaint was filed concerning Retained Trial Counsel. This article is a public records and accountability publication. It reports no disciplinary finding.
I. The Asymmetry of the Defense Record
The central fact of a trial record is simple: what never enters it becomes difficult to review later.
A witness can make an accusation in minutes. Testing the accusation may require hours of preparation, impeachment material, prior statements, exhibits, and cross-examination. A prosecutor can introduce a dangerous image in a sentence or a gesture. Preserving the error may require an immediate objection, a requested instruction, a mistrial motion, and a record of what happened outside the jury’s presence.
That asymmetry matters here because Lono’s criticism centers on the records the defense failed to create—the objections, examinations, offers of proof, motions, and client-decision documentation that would have allowed the disputed facts to be tested.
The shortest audit is therefore procedural:
- What did counsel tell the jury in opening?
- Did counsel cross-examine the complaining official?
- What did counsel document about Lono’s wish to testify?
- What did counsel do after the prosecutor’s mock-pistol closing?
- What did counsel do after Lono repeatedly rejected plea resolution and instructed him to stop pressing it, including during deliberations?
- Did counsel identify and address any personal-interest issue that could materially limit the representation?
The transcript and defense file can answer most of those questions without speculation about motive.
The broader chronology remains relevant because the omitted defense was about intent. Lono’s position was not that the tax-office encounter occurred in a vacuum. He says he entered it after months of escalating pressure, severe sleep disruption, and a conditional lethal threat aimed at stopping his defense investigation and disclosure. He wanted the jury to hear why he was frightened and why his words inside the booth should not be understood as a calculated plan to terrorize a state employee.
That narrative never reached the jury through his own testimony.
II. The Plea-Mill Economics: $6,000 to Plead, $8,000 to Try
Lono reports a tiered fee arrangement with Retained Trial Counsel: $6,000 for plea representation and $8,000 for a full jury trial. He describes the structure he encountered as plea-mill economics: most of the fee attached to negotiated disposal, with only a small marginal fee attached to actually trying the felony case.
The arithmetic is stark. Plea representation captured 75 percent of the maximum fee. Taking the felony case through a jury trial added only $2,000.
Lono says the posture was more lopsided than the fee sheet alone suggests. An improved plea position he considered acceptable as a negotiating baseline was already available before he paid the additional amount and chose trial. He paid the extra $2,000 because he rejected a plea disposition and wanted the accusation tested before a jury.
He describes the representation he experienced as plea-first from the beginning. According to Lono, counsel repeatedly pressed him to resolve the case by plea before trial and continued doing so after Lono made his position explicit: he would not plead guilty and wanted the case tried.
Lono says he eventually gave a direct instruction in substance: stop bringing up the plea.
The pressure continued.
The retainer and the conduct can be audited together. The records should establish:
- the exact $6,000 / $8,000 fee terms and what work each tier covered;
- the plea posture when Retained Trial Counsel entered the case;
- every material plea offer or counteroffer thereafter;
- when Lono rejected plea resolution and how counsel documented that decision;
- investigation, subpoena, witness, expert, motion, and trial-preparation work performed after the case crossed into the trial tier; and
- whether counsel’s file records Lono’s instruction to stop pressing plea resolution except as necessary to communicate a new formal offer.
The economic asymmetry and the reported trial conduct belong beside each other. A full jury trial carried only a $2,000 increment over plea representation. The evidentiary phase then allegedly included zero cross-examination of the complaining witness, no testimony from the defendant, and no presentation of the defense narrative Lono had wanted the jury to hear.
The structure rewarded case resolution far more heavily than the additional labor of actually trying the case. Lono’s account of the representation follows the same direction: plead first, keep pressing the plea, and perform little adversarial work once the client forced the case to a jury.
The economics became sharper at the mistrial point. A plea would end the case. A mistrial would keep the prosecution alive and could lead to another jury trial. The fixed-fee agreement said nothing about retrials, leaving the compensation and scope of any second trial unresolved.
Then the abstract possibility became concrete. Immediately after the jury hung, Lono recalls counsel telling him, in substance, there would be another trial.
That statement matters. Counsel himself treated continued litigation as the expected consequence of the mistrial. The retainer’s silence prevents assigning a fixed dollar consequence to a second trial, but it leaves an obvious Rule 1.7 question: what did counsel expect another trial to require of him, what compensation did he expect, and did that personal financial exposure affect his judgment when a mistrial remedy was available or when he pressed for a plea?1
About a day later, Lono says counsel called again, this time sounding pleased, and reported that the prosecutor was “spooked” and would not retry the case. The expected second trial disappeared. So did the unresolved workload and fee problem.
The transcript can test the trial work. The retainer can test the economic structure. Counsel’s own reported post-mistrial statements supply the contemporaneous bridge between them.
III. The Evidentiary Surrender: Opening and the Complaining Witness
Lono reports that Retained Trial Counsel opened with words to the effect of:
“Maybe he did it.”
The trial transcript is the primary record that will establish the exact phrasing and context.
If the recollection is accurate in substance, the problem is immediate. The opening did not merely fail to tell Lono’s story; it introduced the possibility of culpability from the defense table before the state’s witnesses had been tested.
The larger omission came when the complaining tax official testified.
That witness supplied the account of the unrecorded booth encounter at the center of the prosecution. There was no body-camera recording of the booth, no surveillance recording of the exchange, and no neutral witness inside the room. The state’s case therefore depended heavily on what the official said happened and what he said Lono meant.
Lono denies making the threat attributed to him. He says the actual encounter involved an inflated payment demand, an enclosed booth, escalating pressure, and his own frantic attempt to surrender property and expose what he believed was happening.
According to Lono, Retained Trial Counsel asked the complaining official no questions at all.
If the transcript confirms that, the state’s principal account of the critical encounter went to the jury without cross-examination from the defense.
That matters independently of every later theory about the case. Cross-examination was the direct mechanism for testing:
- the exact words attributed to Lono;
- the sequence of the booth conversation;
- the payment calculation and amount demanded;
- the official’s response when Lono offered his laptop, wallet, or other possessions;
- any changes between earlier accounts and later testimony;
- what information the witness received before testifying; and
- whether the state’s description of the encounter matched the physical setting and contemporaneous records.
A transcript can settle the threshold question in minutes: did the defense cross-examine the complaining witness, and if so, what did it ask?
If the answer is zero questions, the omission is a feature of the trial record.
IV. Suppressing the Defense: Remoteness and the Right to Testify
Lono wanted to testify.
His intended defense narrative included a conditional lethal threat he says he received while investigating matters he believed were relevant to the pending prosecution. The words, as he reports them in the companion account, were a warning to stay away from an unnamed person followed by the consequence that he would be “whacked.”
The threat was not the only preceding event. Lono also wanted to explain the wider pressure history documented in Before the Tax Office and The Threat Report: the housing sequence, private-information incidents, the threat, escalating fear, and severe sleep disruption before the tax-office encounter.
His reason was straightforward. The prosecution’s theory required the jury to interpret intent. Lono wanted to explain his state of mind.
He reports that Retained Trial Counsel rejected the preceding threat and pressure as too remote from the tax-office encounter to matter and advised him not to testify. Lono did not testify.
The key professional rule is explicit. Hawaiʻi Rule of Professional Conduct 1.2(a), including the version in force during the trial period, places the ultimate decision whether to testify in a criminal case with the client after consultation with counsel. The same rule allocates the plea decision to the client.2
The defense file should show what counsel did with the preceding history: research, offers of proof, witness development, evidentiary analysis, and consultation with the client.
Did counsel research a state-of-mind pathway? Did counsel consider an offer of proof? Did counsel identify witnesses or records that could support the threat history? Did counsel explain the consequences of testifying and not testifying? Did he document Lono’s stated desire to take the stand? Did he record a final client decision after consultation?
Those are file questions.
What happened in front of the jury is already known at the highest level: Lono never testified, and the jury never heard the defense narrative from him.
The consequence was structural. The state supplied the meaning of the booth encounter. The defendant did not supply his own account under oath.
V. The Uncontested Mock Pistol
The clearest trial event comes at the end.
Lono reports that during closing argument the prosecutor acknowledged that no gun was involved in the case, then formed a simulated pistol with his hands, directed it toward the jury, and asked jurors to imagine the case as though a gun had existed.
Lono remembers the words in substance as:
“There was no gun in this trial. But what if there was? Convict him. I rest my case.”
The companion article The Hypothetical Gun addresses the prosecutor’s conduct directly. This article asks what happened at the defense table.
Lono recalls the judge reacting strongly, stopping the proceeding, and calling an immediate chambers conference.
He reports that Retained Trial Counsel made no mistrial motion.
He also reports that after the chambers episode, counsel berated him rather than turning the incident into a preserved defense issue.
The transcript and minute entries can establish the public-facing sequence:
- the prosecutor’s exact language;
- whether defense counsel objected;
- whether a curative instruction was requested;
- whether the judge gave one;
- whether a mistrial motion was made;
- whether the recess or chambers conference appears in the record; and
- what, if anything, was placed on the record afterward.
Counsel’s file can establish what was discussed in chambers, what remedy was considered, why counsel chose against a mistrial motion if the transcript confirms none was made, and what he documented after the episode.
The asymmetry is stark. The prosecutor’s imagined gun entered the jurors’ experience instantly. The defense response, according to Lono, left no equally forceful request for relief in the record.
Then counsel’s adversarial energy changed direction.
When the state created the strongest opening in the trial for aggressive defense action, Lono recalls no mistrial motion. When Lono later rejected a petty-misdemeanor disposition during deliberations, counsel became aggressive with him.
The fee structure makes that inversion an ethics question rather than just a rhetorical contrast. A mistrial kept the case alive. A plea ended it. The retainer was silent on retrials. And when the jury ultimately hung, counsel immediately told Lono another trial would follow.
That post-mistrial statement supplies the contemporaneous fact the financial inquiry needs: counsel expected continued litigation. The remaining questions are what he expected a second trial to cost him, how he expected to be paid, whether he expected to remain counsel of record, and whether those personal interests affected his choices when the mock-pistol episode created a possible mistrial path.
VI. The Midnight Closing That Broke the Deadlock
Retained Trial Counsel’s closing argument was different from the rest of the defense.
Lono credits it without qualification.
He remembers counsel preparing the argument at the end of the case and delivering a broad political defense of the individual against government power: administrative overreach, coercive state authority, and the danger of criminalizing a citizen’s confrontation with government.
The argument gave the jury a frame the evidentiary phase had failed to supply.
Lono’s assessment is that the closing broke the prosecution’s momentum and produced the deadlock that saved him from a conviction. The jury never returned a guilty verdict. It remained unable to reach unanimity, and the court declared a mistrial.
During the evidentiary phase, Lono describes a defense that left the complaining witness uncrossed, kept Lono off the stand, and omitted the preceding pressure narrative. At closing, counsel finally supplied a forceful theory of government power and individual resistance.
The result was a hung jury.
Immediately afterward, according to Lono, counsel told him there would be another trial. About a day later counsel called again, sounding happy, and said the prosecutor was “spooked” and would not retry the case.
That sequence matters twice. First, it confirms how counsel himself understood the consequence of the hung jury: the case remained alive until the state chose otherwise. Second, it places the fee issue beside a contemporaneous statement rather than a later reconstruction. The retrial problem counsel had expected vanished only when the prosecution abandoned another trial.
Lono recalls no corresponding discussion of seeking disciplinary review of the mock-pistol episode, documenting it for a professional-conduct complaint, or advising him about such a complaint. Counsel celebrated the disappearance of the second trial; the prosecutor’s courtroom conduct remained untested in any disciplinary forum.
The same lawyer who had shown little adversarial force during the evidentiary phase proved capable of reaching the jury when he chose to engage at full rhetorical force. That contrast is the center of this audit.
VII. The Petty-Misdemeanor Offer and the Courthouse Bench
The plea pressure began long before jury deliberations. Lono says it was counsel’s recurring posture throughout the representation, continuing after repeated rejections and after the direct instruction to stop pressing a plea.
During deliberations, the bargaining position changed materially.
Lono reports that the prosecution offered to resolve the felony case as a petty misdemeanor. The exact charge, conditions, and timing belong in the plea communications or counsel’s file. The reduction was dramatic: the state was offering certainty at a fraction of the exposure it had carried into trial.
Counsel had to communicate the new offer.3 Lono rejected it.
Rule 1.2(a) placed the plea decision with Lono after consultation with counsel.2 His answer, as he recalls it, was unequivocal: no. He wanted the jury to finish.
Counsel kept pressing.
That is where the contrast with the mock-pistol episode becomes severe. The prosecutor had just supplied an obvious occasion for aggressive defense action, followed by an immediate chambers conference. Lono recalls no mistrial motion. Yet after Lono rejected the petty-misdemeanor offer, counsel directed sustained adversarial pressure at his own client.
The confrontation moved to a courthouse bench while the jury was deliberating.
Lono says he was praying. He recalls counsel scolding him and saying, in substance, that he did not “believe in that religion stuff” while continuing to push the plea.
The professional line is straightforward. Rule 1.4 required communication and explanation of the new offer.3 Rule 1.2(a) left the ultimate plea choice with the client.2 Lono’s account is that counsel conveyed the offer, received the answer, and then kept trying to reverse that answer through pressure and ridicule.
The fee structure makes the timing especially important. A petty-misdemeanor plea would close the prosecution immediately. A hung jury would keep the case alive. Counsel had charged only $2,000 more for trial than for plea representation, and the retainer contained no retrial term.
The jury hung anyway.
Counsel’s immediate response, according to Lono, was: there will be another trial.
That contemporaneous statement turns the retrial issue from a hypothetical into counsel’s own expectation. Whatever the ultimate contractual answer, counsel believed the case was continuing. A second trial meant more work, some unresolved question of payment or withdrawal, and continued attachment to a file he had repeatedly tried to resolve by plea.
About a day later, counsel called back happy and said the prosecutor was “spooked” and would not retry. The state closed the case. The expected second trial—and the unresolved financial exposure attached to it—disappeared with the call.
Lono also recalls that counsel never advised him to pursue disciplinary review of the mock-pistol closing. That omission belongs beside the rest of the sequence because counsel had witnessed the event, declined the mistrial remedy Lono expected, and then treated the state’s decision to abandon retrial as the endpoint of the matter.
The audit path is concrete:
- What plea posture existed before Retained Trial Counsel was hired?
- How often did counsel advocate a plea after Lono said he wanted a jury trial?
- When did Lono instruct counsel to stop pressing plea resolution?
- What exact petty-misdemeanor offer arrived during deliberations?
- What did Lono say when it was communicated?
- What did counsel do after Lono rejected it?
- What did counsel mean immediately after the hung jury when he said another trial would follow?
- What changed before the next-day call reporting that the prosecutor was “spooked” and would not retry?
- What did counsel’s file say about compensation, withdrawal, or continued representation if a second trial occurred?
- Did counsel document, discuss, or recommend any disciplinary response to the mock-pistol episode?
- Do counsel’s notes, emails, messages, or any courthouse witness support or contradict the reported bench exchange?
The article’s professional-responsibility question now sits on a single sequence: no reported mistrial motion, intense plea pressure after rejection, an expected second trial after the hung jury, and visible relief when the state abandoned that second trial. The retainer and case file can show how much of that sequence carried a personal financial consequence for counsel.
VIII. Possible Material Limitation and the Audit Path
The most sensitive issue is also the one that should be handled most mechanically.
Lono reports that Retained Trial Counsel spoke about his own social proximity to prominent figures in the North Shore surf world. One disclosure was specific: counsel described sitting in VIP seating at The Eddie with a religious figure whom Lono understood to be directly connected to a prominent local surf family that intersected with the defense history Lono was trying to raise.
Lono also reports that when he tried to explain the conditional threat and the surrounding North Shore sequence, counsel treated the account dismissively and regarded him as irrational.
Personal social proximity to third parties implicated in a defense narrative supplies a narrower Rule 1.7 question: was there a significant risk that counsel’s personal interests or relationships materially limited the representation?1
That question has a documentary answer.
The file should show whether counsel performed a conflict check, identified any personal relationship relevant to the defense narrative, disclosed any material limitation, or obtained any consent required by the rules.
The relevant inquiry is whether the relationships counsel himself described affected the representation and whether the required conflict process occurred. Attendance at an event or familiarity with prominent people supplies context; the conflict question turns on material limitation.
The larger audit can be reduced to a table:
| Issue | Primary record | What would confirm or defeat the account |
|---|---|---|
| $6,000 / $8,000 fee structure | Retainer agreement; payment records | Exact scope of plea representation, trial representation, and the $2,000 increment |
| Retrial economics | Retainer; engagement correspondence; billing records; withdrawal/substitution record | The retainer was reportedly silent on retrials. What, if anything, would a mistrial have required of counsel, could a new fee have been charged or collected, and would continued representation or withdrawal have created a personal financial interest favoring immediate disposition? |
| Pre-existing plea baseline | Plea correspondence; counsel file | Whether an improved plea posture already existed before the additional trial fee was paid |
| Opening framing | Trial transcript | Exact wording and whether counsel introduced culpability in opening |
| Complaining witness cross-examination | Trial transcript | Number and substance of defense questions, including whether there were none |
| State-of-mind defense | Research, notes, subpoenas, witness list, motions | Whether counsel investigated a pathway for the preceding threat and pressure evidence |
| Right to testify | Counsel notes; client communications; any colloquy | What Lono requested, what counsel advised, and how the final decision was documented |
| Mock-pistol closing | Closing transcript; minute entries | Exact language, recess/chambers sequence, objection, instruction, and mistrial request |
| Post-chambers conduct | Counsel notes; witness recollection | What remedy counsel considered and what occurred between counsel and client afterward |
| Defense closing | Trial transcript | The actual political argument Lono credits with helping produce the hung jury |
| Persistent plea pressure | Retainer; plea communications; counsel notes; client communications | Whether counsel repeatedly pressed plea resolution before trial after Lono instructed him to stop advocating it |
| Petty-misdemeanor offer during deliberations | Plea communications; counsel file; any on-record discussion | Exact terms of the new offer, Lono’s rejection, and what counsel did after the decision was made |
| Courthouse-bench confrontation | Counsel notes; client account; any available witness or contemporaneous communication | Whether counsel continued pressuring Lono and made the reported remark about his praying after he rejected the offer |
| Post-hung-jury retrial expectation | Counsel notes; calls/messages; engagement file | Whether counsel told Lono another trial would follow, what he expected that second trial to require, and how compensation or withdrawal would be handled |
| Next-day no-retrial call | Counsel notes; calls/messages; prosecution communication | Whether counsel reported that the prosecutor was “spooked” and would not retry, and what communication produced that conclusion |
| Disciplinary-response discussion | Counsel notes; client communications | Whether counsel discussed preserving or reporting the mock-pistol episode through any professional-conduct channel |
| Possible material limitation | Conflict check; disclosure; waiver; counsel file | Whether relevant financial or personal interests were identified and addressed under Rule 1.7 |
What Would Falsify or Materially Weaken This Account
The article should change if the primary records change the facts.
A transcript showing sustained cross-examination of the complaining official would defeat the uncrossed-witness claim. An opening transcript materially different from Lono’s recollection would require revision of the opening section. A recorded objection, curative request, or mistrial motion after the mock-pistol closing would defeat the corresponding omission claim. File notes documenting a client decision on testimony materially different from Lono’s account would change the right-to-testify analysis. Plea records materially inconsistent with the reported persistent pressure, petty-misdemeanor offer, or courthouse-bench exchange would change those sections. Records showing that a second trial carried a clearly defined new fee and readily available withdrawal path would substantially weaken the financial-conflict theory. Records showing that counsel expected continued representation without assured additional compensation would strengthen the Rule 1.7 inquiry. Call records, notes, or prosecution communications can test the reported sequence in which counsel first said another trial would follow and then reported the prosecutor was “spooked” and would not retry. A conflict file showing that counsel identified, disclosed, and addressed a material personal-interest issue would answer that portion of the audit.
That is the standard.
The case turns on the records a functioning defense should leave behind.
The jury hung. Lono walked out without a conviction. He credits counsel’s closing argument for helping make that possible.
The hung jury leaves the earlier trial record intact. The unanswered question is what kind of defense could have existed if the same force counsel found at closing had been applied earlier—when the state’s principal witness was on the stand, when the client wanted his account heard, and when the prosecutor put an imaginary weapon into the jury’s mind.
Motive can remain disputed. The transcript, retainer, call history, and defense file can establish the conduct and the incentive structure.
Source and Response Note
This article is based on Ekewaka Lono’s firsthand recollections, the companion public-accountability chronology on GTCode.com, and record paths identified for the underlying trial and counsel file. The trial transcript, minute entries, complete defense file, retainer agreement, full plea-offer chronology, client communications, and any records bearing on the reported courthouse-bench exchange are the primary materials for testing the allegations described above.
No disciplinary complaint concerning Retained Trial Counsel was filed. No adjudication or professional-misconduct finding exists.
Any person or institution with records that materially alter the chronology or the conduct described here may respond through the site’s Corrections Policy. Documentary corrections should be incorporated with the source identified.
The header image is generated editorial artwork: a generic empty defense table and courtroom rather than an actual courtroom, lawyer, judge, juror, or trial event. Image credit: generated editorial artwork for Oahu Underground / GTCode, October 3, 2026.
Hawaiʻi Rules of Professional Conduct, Rule 1.7(a)(2), Conflict of Interest: General Rule, addressing a significant risk that representation will be materially limited by responsibilities to another person or by a lawyer’s personal interest. Official Hawaiʻi Judiciary rules PDF, HRPC–19, release December 2015. ↩︎ ↩︎
Hawaiʻi Rules of Professional Conduct, Rule 1.2(a), Scope of Representation and Allocation of Authority Between Client and Lawyer. The rule assigns the decisions whether to plead, waive jury trial, and testify to the criminal defendant after consultation with counsel. Official Hawaiʻi Judiciary rules PDF, HRPC–8, release December 2015. ↩︎ ↩︎ ↩︎
Hawaiʻi Rules of Professional Conduct, Rule 1.4, Communication. Rule 1.4(a)(6) requires prompt communication of a proffered plea bargain; Rule 1.4(b) requires explanation sufficient for informed client decisions. Official Hawaiʻi Judiciary rules PDF, HRPC–11, release December 2015. ↩︎ ↩︎