The state Intermediate Court of Appeals on Tuesday ruled Hilo Circuit Judge Henry Nakamoto erred when he denied a group seeking to overturn convictions in the Dana Ireland murder trial a hearing on a motion to unseal post-conviction DNA testing conducted on a piece of key evidence.
The ruling by the three-judge appellate panel vacates an order by Nakamoto denying a motion by Seattle-based Judges for Justice to set a hearing on a motion to unseal DNA testing on a bloody Jimmy Z T-shirt.
The shirt, which several 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 1991 Christmas Eve 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 death, on his 42nd birthday, occurred a day after it became public 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.
Mike Heavey, a retired Seattle judge who spearheads Judges for Justice, said he’s “delighted” with the appellate decision.
The appellate court also overturned an order by Nakamoto that Judges for Justice pay more than $17,000 in legal fees to Ian Schweitzer’s Hawaii Innocence Project lawyers.
On June 28, 2019, Nakamoto declined to provide a hearing date because Heavey was “not a party or counsel for a party” in the 2007 post-conviction DNA testing case.
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.
“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.”
“Those cases hold that there’s a constitutional right for any person to see what’s in the court files, unless there’s a compelling interest (for sealing) say, like, a 15-year-old rape victim’s name. That might be a compelling interest to keep secret,” Heavey said. “So what they’re saying is Judge Nakamoto, if you want to keep some of that sealed, you better have a hearing. It’s in accord with well-established Hawaii Supreme Court law, and Judge Nakamoto, with all due respect, was in error on several issues.”
Heavey believes Pauline and the Schweitzers were innocent and that 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 planned to move to Puna to be with her older sister, Sandy.
Heavey, however, 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.
“Bottom line is, I think the information is forthcoming, and I think the file’s going to be unsealed. I don’t know when. It might be two months, might be a year,” Heavey said.