The Hawaii Supreme Court heard oral arguments Thursday on a petition by the Hawaii Police Department asking the justices to order 3rd Circuit Judge Peter Kubota to vacate his Aug. 5 decision, which would require police to release information in their ongoing investigation into the 1991 Dana Ireland murder and rape case in Puna.
Britt Bailey, deputy corporation counsel for the Hawaii Police Department, told the justices that the investigation into new suspect Albert Lauro Jr., who committed suicide July 23, is ongoing and was “in its infancy” when the department was served Aug. 1 with Albert Ian Schweitzer’s subpoena demanding law enforcement records related to the investigation be released.
The Police Department on Aug. 2 filed a motion to set aside the subpoena or to maintain the confidentiality of the information, which Kubota denied Aug. 5.
Bailey called it unreasonable and oppressive and said the subpoena would frustrate the Police Department’s legitimate criminal investigation and compromise the current investigation.
She told the high court that the lower court said, “You’re not going to prosecute a dead person. What are you investigating?” Bailey said, “That’s exactly what was being investigated.”
Bailey asked for Kubota to maintain confidentiality regarding the information until the investigation is complete, “not into perpetuity.”
Attorneys for brothers Albert Ian Schweitzer and Shawn Schweitzer are seeking a declaration of innocence, which would allow them to receive compensation — $50,000 a year for every year they were wrongfully imprisoned for crimes they did not commit and for attorneys’ fees, said William Harrison, an attorney with the Hawaii Innocence Project, representing Albert Ian Schweitzer.
For Schweitzer, who was imprisoned for 23 years before Kubota ordered his immediate release Jan. 24, 2023, that would amount to roughly $1,150,000 in compensation. His brother, who served about a year, would receive less.
The Schweitzers have filed motions for finding of actual innocence, which is what is needed to receive compensation for the years spent in jail.
The Schweitzers’ lawyers would like to see whether Lauro, a 57-year-old Paradise Park man, may have denied knowing the Schweitzers in 1991, or any other information that could be used to find them innocent.
Chief Justice Mark Recktenwald and four associate justices questioned attorneys for the petitioner and respondents in Hawaii Police Department v. Judge Kubota on Thursday morning but made no ruling and took the matter under advisement. The court provided no timetable as to when a decision might be reached.
Sitting in the gallery were the Schweitzer brothers, whose convictions in 2000 were overturned. They thought they had been exonerated in 2023 by new DNA evidence and were likely surprised when an attorney for Hawaii County told the court they remain suspects in the case.
New DNA evidence led Kubota to overturn the Schweitzers’ convictions. A third man convicted in the case, Frank Pauline, died in prison before that decision. The DNA of all three did not match the evidence found in the case.
The new DNA evidence also led to the discovery of Lauro, who killed himself July 23, four days after he was ordered to go in for questioning by police and to take a court-ordered DNA test. The results linked him to the evidence found in 1991.
Ireland, 23, a visitor from Virginia, was found along a fishing trail in Puna after being sexually assaulted and beaten, and later died at the hospital. Her bicycle was found several miles away and appeared to have been struck by a vehicle.
Justice Vladimir Devens asked Bailey, “Who are you investigating?” and whether there are other suspects.
Bailey said she was not aware of any new leads but said police are still interviewing witnesses, including family members of Lauro; doing cellphone analysis; awaiting test results; and reviewing autopsy reports and that the case is “still very active.”
Deputy Prosecutor Shannon Kagawa, who represents the state of Hawaii, said, “The state believes the Schweitzers are still suspects in the crime.”
Although the state did stipulate to certain facts, she cited Shawn Schweitzer’s own statement and change of plea and statements by witnesses who testified against them.
She said the DNA evidence could lead a jury to reach a different verdict.
Eddins asked rhetorically that since there is no statute of limitations for murder, could the Schweitzers be murder suspects for another 30 years?
Kagawa said Lauro was unknown at the time that the Schweitzers’ convictions were overturned.
Recktenwald asked whether Lauro is the sole suspect in the case.
“We are not ready to say,” Kagawa said.
But the court left open the door since the cases against the Schweitzers were dismissed without prejudice, meaning the prosecution can bring charges against them again.
Harrison said because of the judge’s dismissal without prejudice, it “puts a wrinkle in how they proceed in this matter. … The attorney general wrote us back saying you cannot come to me until you get a decision by the court of actual innocence.”
Devens, one of the justices, said looking at Kubota’s findings, with the new evidence, a new trial would reach a verdict of acquittal. “Did you consider that as insufficient?”
Harrison, who is Albert Ian Schweitzer’s attorney, said, “We are trying to cover our bases so we can resolve this issue on behalf of the Schweitzers,” he said.
“We used the only vehicle we could,” Harrison said, filing a petition for relief pursuant to Hawaii Revised Statutes Chapter 661B, requiring a declaration of innocence.
He said the matter should have been moved to civil court and that “we ultimately have to file a civil complaint.”
Shawn Schweitzer’s attorney, Keith Shigetomi, said his client was 16 years old at the time, and “wants the chance to remove the stain from his name.”
He said all he is asking is for Kubota to release the information.
Shigetomi, Schweitzer’s attorney, said the Schweitzers’ concern is that the Police Department has said it needed three weeks to release the information, but it has gone past three weeks.
If there was anyone who had any information in 1991, they would have come forward, he said.
After questioning by the justices, Kagawa, the deputy prosecutor, said, “I don’t believe Lauro said he stated, ‘I’m the one who did it, and the Schweitzers did not do it.’”
Jennifer Brown, an attorney for the Hawaii Innocence Project, said they are seeking release of the information not just to the Schweitzers, but publicly because Kubota had reviewed the documents and did not believe they would harm any investigation since Lauro is deceased.
“The Schweitzers have waited long enough,” she said, and it is coming up on the two-year mark. She disagreed they are still suspects, and said police always had a fourth suspect.
