Hilo Circuit Judge Peter Kubota has released a redacted version of a document apparently related to post-conviction DNA testing performed in the Dana Ireland murder case.
The document was the second of two sought by the Seattle-based organization Judges for Justice that was filed under seal by since-retired Circuit Judge Glenn Hara. The first, from 2007, was unsealed and released last month by Kubota.
The Seattle group believes three men — Albert “Ian” Schweitzer, his younger brother, Shawn Schweitzer, and Frank Pauline — were wrongfully convicted of the 22-year-old Ireland’s 1991 abduction, rape and murder in lower Puna.
The Hawaii Innocence Project and the New York Innocence Project, both representing Ian Schweitzer — who has been incarcerated for more than two decades — are attempting to exonerate him.
Both groups opposed the documents’ release and said the documents’ confidentiality are essential to a collaborative investigation into Schweitzer’s case conducted jointly by the Innocence Project organizations and the Hawaii County prosecutor’s office.
County Prosecutor Kelden Waltjen confirmed Thursday that Deputy Prosecutor Shannon Kagawa is assigned to Ian Schweitzer’s case.
“Since his conviction, legal teams have raised concerns and sought post-conviction relief. These matters are still pending disposition,” Waltjen said. “We have cooperated with the Hawaii Innocence Project throughout their investigation and continue to share information.”
Kubota told Judges for Justice’s attorney, Steve Brittain, Kubota conducted a private, off-the-record meeting with the two Innocence groups.
“The attorneys have explained to me what the ongoing process is for post-conviction integrity proceedings: to examine the evidence and to determine whether the conviction was rightfully found,” Kubota said Wednesday in court. “It is ongoing, and there are certain pieces of evidence in the 2009 (document) that are required to be redacted, as there is ongoing investigation. Now, Mr. Brittain, this is not a criminal investigation, this is a post-conviction integrity determination which may be, in fact, more important than a criminal investigation.”
Kubota cited the 2018 case Grube v. Trader in his decision to release the document in redacted form.
“There’s a threshold that you need to meet, you know, to determine whether or not such matters should be unsealed,” he said.
“One of them is whether these kinds of proceedings are generally held open to the public. And the second is whether the public would assist in the process. As with the other matter, the 2007 (document), I don’t see that there’s a traditional openness of such proceedings … .”
The redacted document has a list of items sent for post-conviction DNA testing but not the testing results. Mike Heavey, a retired Seattle judge and leader of Judges for Justices, previously expressed his belief that those files contained DNA results exonerating the three men.
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, was sentenced to five years of probation and a year in jail, already served, for manslaughter.
Pauline was killed by a rock-wielding assailant in a New Mexico prison in 2015 on his 42nd birthday.
“Nothing in this 2009 (document) has any DNA test results, as represented by your client in the past,” Kubota told Brittain. “And that’s the reason why I’m releasing it. Because there’s a cloud on this proceedings due to all the media exposure and allegations that the prosecution and defense counsel are somehow collaborating and conspiring to withhold material evidence.”
Kubota told Brittain to file a motion for reconsideration for the redactions if he thought they were improper.
“At that point, I will conduct a closed hearing to put it on the record so that any appellate court can see the proceedings and what was actually being redacted to make a determination,” the judge said.
Brittain said he would consult with his client and likely would file a motion for reconsideration.
Wednesday’s hearing and the June 28 hearing when the first document was released resulted from a remand order by the Intermediate Court of Appeals.
After the hearing, Heavey told the Tribune-Herald that Kubota didn’t do what the appellate court directed in those hearings, adding he’s considering an appeal to the Hawaii Supreme Court for a writ of mandamus, a court order to a government official ordering the official to properly fulfill their duties.
“The Intermediate Court of Appeals remanded (the case) to the Circuit Court to conduct hearings in accordance with Hawaii law,” Heavey said. “And that law requires him to make findings of fact — in other words, findings of evidence. Rudy Giuliani can say the 2020 elections were stolen. But the court has to hear evidence that the elections are stolen. Same here. HIP complained that this (is) irreparable harm, but they’ve got to present evidence. They haven’t presented any evidence to the court. (Kubota) has made no findings that were directed by the court of appeals (for him) to do so.
“If he were to conduct a confidential hearing and make a record of it and then seal the transcript, that would be fine. Then he would have to make findings of fact, which he might do under seal itself, of why he believes the evidence presents an irreparable harm to a compelling interest.”
Ken Lawson, director of HIP, said he’s “glad the judge said what we could not say, which is the documents contain no DNA results.”
“The judge also put on the record that the allegations that Mr. Heavey and Judges for Justice have been making are not true,” Lawson told the Tribune-Herald. “I find it ironic, even incredible, that an organization, Judges for Justice, that claims to be an organization that advocates actual innocence when prosecutors and police falsely accuse innocent people of offenses, would engage in the same conduct that they profess to be against. And that same conduct is falsely accusing someone without any evidence.
“And this has been repeatedly done by Judges for Justice and Judge Heavey in the news media.”
Email John Burnett at jburnett@hawaiitribune-herald.com.
