A group seeking to overturn convictions in the Dana Ireland murder trial filed a motion Thursday seeking to unseal post-conviction DNA testing conducted on a piece of key evidence in that case.
Hilo Circuit Judge Peter Kubota has scheduled a hearing on the motion by the Seattle-based Judges for Justice for 9 a.m. June 21.
The hearing comes a little more than a year after the Intermediate Court of Appeals vacated an order by Hilo Circuit Judge Henry Nakamoto denying a motion by Judges for Justice to set a hearing on whether to unseal DNA testing results on a bloody Jimmy Z T-shirt.
The shirt, which multiple witnesses said belonged to defendant Frank Pauline Jr., was a critical piece of evidence in separate trials convicting Pauline — who was killed in a New Mexico prison in 2015 — and brothers Albert “Ian” Schweitzer and Shawn Schweitzer. All were charged with the Christmas Eve 1991 rape and murder of Ireland in lower Puna.
The blood on the T-shirt was Ireland’s, but additional DNA on the shirt didn’t match any of the three defendants.
Ian Schweitzer is serving a life sentence with a minimum term of 130 years in prison.
Shawn Schweitzer, who was 16 when the crime occurred, became a witness for the state and was sentenced to five years of probation and a year in jail, which had already been served, for manslaughter.
Pauline’s slaying, on his 42nd birthday, occurred a day after the Tribune-Herald reported that the Hawaii Innocence Project had taken up the case of Ian Schweitzer and had post-conviction DNA testing performed on evidence in the case.
“We are very gratified that Judge Kubota took the initiative to schedule this hearing,” Mike Heavey, a retired Seattle judge who spearheads Judges for Justice, said Friday. The ruling by the three-judge appellate panel remanded the matter back to Hilo Circuit Court. Kubota inherited the case after Nakamoto recused himself from any further proceedings in the matter.
“Judge Nakamoto, I believe, was grievously wrong,” Heavey said. “He not only denied the motion and didn’t have a hearing. He sanctioned us $17,000 in attorney fees.”
The appellate court ruled that Nakamoto erred in declining to schedule the hearing on the grounds that Heavey was “not a party or a counsel for a party” in the 2007 post-conviction DNA testing case. The ICA also overturned Nakamoto’s order to pay more than $17,000 in attorney fees to Ian Schweitzer’s Hawaii Innocence Project lawyers.
“We conclude that the circuit court erred by not setting a hearing on Judges for Justice’s motion …,” the opinion states. “We express no opinion on the merits of Judges for Justice’s request to unseal the DNA testing.”
The appeals court cited two cases, Oahu Publications Inc. (the Tribune-Herald’s parent company) vs. Ahn (2014) and Grube vs. Trader (2018) — both dealing with public access to court proceedings and records — in its decision to remand the motions back to circuit court for a hearing.
“I think the law is fairly clear,” Heavey said. “Unless you can state a compelling interest — a privacy issue, like the name of a rape victim or the name of a criminal confidential informant, something that might do irreparable damage — the records of the courts and the proceedings should be open.
“That’s a constitutional right to every member of the public in the state of Hawaii.”
The Hawaii Innocence Project, which still represents Ian Schweitzer, has until June 8 to file a memorandum in opposition to Judges for Justice’s motion. Ken Lawson, HIP’s co-director, said the organization would do so.
“The Hawaii Innocence Project, The New York Innocence Project and the prosecutor are jointly investigating the case with respect to the unknown DNA,” Lawson said. “Pursuant to that agreement, we can’t make any public comments on the case.”
Heavey believes Pauline and the Schweitzers — the brothers were implicated in a later-recanted confession by Pauline — weren’t involved in the rape and murder of Ireland. Heavey says the evidence points to a lone assailant obsessed with the 23-year-old Ireland, who had just graduated from George Mason University in Virginia and moved to Puna to be with her older sister, Sandy.
That said, Heavey has been at odds with the Hawaii Innocence Project, which sought a cease-and-desist order against him from a previous state attorney general in 2018, claiming Heavey’s efforts were interfering with their attempts to exonerate Ian Schweitzer.
“We think that sealed file contains evidence of two important things,” Heavey said. “One, that two Hawaii attorneys intentionally concealed evidence from Frank Pauline, that being the Hawaii County Prosecutor’s Office and the Hawaii Innocence Project. And it is a violation of the Attorney’s Code of Ethics to conceal evidence from a party. Two, we believe that file contains DNA tests that show that the T-shirt that was worn by Dana Ireland’s killer was not Frank Pauline’s. That was the critical evidence against Frank Pauline. Three witnesses testified that the T-shirt was his.
“Unfortunately, that DNA evidence was never given to Frank Pauline back in 2007 and he was never able to use it to clear his name because he was murdered in prison in 2015.”
Email John Burnett at jburnett@hawaiitribune-herald.com.
