A hearing Tuesday to determine if Albert “Ian” Schweitzer and his brother, Shawn Schweitzer — whose convictions for abducting, raping and killing Dana Ireland on Christmas Eve 1991 were vacated last year by a judge — are “actually innocent,” turned out to be a contentious affair.
A finding of actual innocence, as opposed to insufficient evidence for a guilty verdict, would entitle the Schweitzers to monetary compensation under a state law.
The hearing occurred in the wake of recent DNA findings that a man previously only known as “Unknown Male No. 1” was actually a Albert Lauro Jr., a 57-year-old Hawaiian Paradise Park man.
Lauro met with police and gave them a court-ordered buccal swab on July 19. He was found dead on July 23, a day before his saliva was found to be a match for the unknown suspect. Police say Lauro, whom they didn’t arrest — citing lack of probable cause to file a murder charge — killed himself.
The brutal nature of the assault on Ireland, a 23-year-old recent college graduate from Virginia, sent shock waves statewide and beyond.
Ian Schweitzer served 26 years of a life-plus-20 year sentence on murder, sexual assault and kidnapping charges, before being freed last year by Hilo Circuit Judge Peter Kubota, who also was presiding Tuesday.
Kubota last year also vacated the manslaughter and rape conviction of Shawn Schweitzer, who was a minor when the heinous attack occurred in lower Puna. The younger Schweitzer took a plea deal for five years of probation and a year in jail — time already served — after witnessing his brother’s murder conviction in a jury trial.
The Schweitzers were implicated by Frank Pauline Jr., who named them in a confession he said he gave falsely to secure a favorable deal in a drug case in which the defendant was John Gonsalves, Pauline’s half-brother. Also testifying for the state were Gonsalves and jailhouse informant Michael Ortiz.
Pauline also was convicted in a jury trial and sentenced to life-plus-40 years. He was murdered on his 42nd birthday in a New Mexico prison year.
Ian Schweitzer’s lawyers, William Harrison of the Hawaii Innocence Project and Barry Scheck of the New York Innocence Project, as well as Shawn Schweitzer’s attorney, Keith Shigetomi, argued Tuesday that police had probable cause to arrest Lauro for murder.
“You’ve got ample evidence as to who the killer of Dana Ireland is. The state had that evidence for a long period of time,” Harrison told the judge. “The police have had that evidence and they, unfortunately, Your Honor, they have botched that evidence and caused (Albert Lauro) to commit suicide.”
Scheck — who rose to national prominence for his knowledge of DNA evidence as part of O.J. Simpson’s defense team — called Ireland’s death clear case of “murder by omission.”
“The idea that they didn’t have probable cause for charging him with murder, as opposed to rape, is deeply, deeply troubling,” Scheck said. “And we told them, again and again, that there was this danger that (Lauro) would flee, destroy evidence or kill himself.”
He added there is “not a scintilla of credible evidence that ties our clients to this case.”
Scheck also alleged “inappropriate and improper procedures used to convict our clients, in terms of jailhouse informants,” saying that Pauline, who was serving time for an unrelated sexual assault, and Ortiz were fed information to use for testimony by Hawaii Police Department investigators.
“Mr. Ortiz told us that … his testimony that he gave to the court was not true, that he got some benefit for testifying on behalf of the state in his case,” Scheck told the judge.
Shigetomi sought to define “actual innocence.”
“In pidgin, we might say, ‘He neva do ’em.’ But by any definition, I think it’s quite clear that Shawn is actually innocent,” Shigetomi said. … “There’s no evidence to show that Shawn was involved, no evidence to show that Shawn was even present, much less guilty.”
Shigetomi said police turned to jailhouse informants to placate Ireland’s parents and quell community outrage after the crime went unsolved for years.
“After Dana’s death, her parents asked for help. But it was not in a soft tone, like Dana. They were angry,” he said. “They called the police incompetent. They called the police corrupt — and the community echoed the sentiments. And years went by, and the police were no closer to solving the case then they were when it first happened. With nowhere else to turn to and a need to save face, they turned to two criminals who claimed to have information.”
For the state, Deputy Prosecutor Shannon Kagawa argued, “The state’s position is that actual innocence is factual innocence and not just legal insufficiency.”
“Your Honor, … I’m not disputing what’s in the findings of facts and conclusions of law. We agreed to it. Those are the facts,” Kagawa said. “But it’s also a fact that Michael Ortiz made a statement. It’s also a fact that John Gonsalves made a statement. Those are all facts that the court has to consider.”
“Tell me why you believe that these defendants should not be found factually innocent?” Kubota asked.
“Because they themselves made statements that put them at the scene,” Kagawa replied. “The state’s not disputing that the DNA evidence shows that Albert Lauro’s evidence was at scene two … Miss Ireland’s final spot. But there’s no evidence to say that (the Schweitzers) were not involved, as well. … The scene was not secure.
“Shawn Schweitzer came before the court, signed a change of plea form, and I think that the court has to consider the fact that he did say that on Dec. 24, 1991, he was present at the incident in which Dana Ireland was kidnapped, sexually assaulted and killed. He admitted to those facts. … It could be consistent with the fact that they left … Miss Ireland at the second scene to die. And that’s when Albert Lauro came across her.”
Given the opportunity to rebut, Shigetomi was brief.
“Albert Lauro Jr. came upon a scene and saw Dana Ireland beaten, and then took the opportunity to rape her?” he asked, a tone of incredulity in his voice.
“Thirty-three years later, they’re still grasping at straws.”
The judge ruled the Schweitzers’ lawyers can subpoena police for evidence they say is being withheld before he rules on the Schweitzers’ innocence.
County lawyers can file a motion to quash the subpoenas or limit evidence. If they do so, the judge will hear that motion on Thursday.
Email John Burnett at jburnett@hawaiitribune-herald.com.
