Ben Lowenthal: Hawaii Prosecutors Need To Be Willing To Scrutinize Convictions - Honolulu Civil Beat

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About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at ben.lowenthal@civilbeat.org.

The number of exonerations is growing around the nation, and that trend could become increasingly costly for taxpayers.

Almost 32 years ago, Dana Ireland was run off the road as she rode her bicycle. She was kidnapped, beaten, sexually assaulted and left in bushes off a fishing trail in Puna District on the Big Island. She died of these injuries.

County prosecutors were under tremendous pressure to make a case and years later they indicted three men. Shawn Schweitzer was 16 when Ireland was killed. His brother, Ian, was 20. And Frank Pauline Jr. was 18.

Frank’s trial went first. Although none of their DNA matched the physical evidence, he was convicted. Ian’s trial followed and he too was convicted.

They were sent to prison for the rest of their lives.

Shawn took a deal, pleaded guilty to manslaughter and kidnapping, and was sentenced to probation.

Their cases were far from over. In 2015, papers reported the Hawaii Innocence Project, a nonprofit organization and a team of lawyers, and a Seattle-based organization called Judges for Justice, were demanding a review of the Schweitzer convictions.

The next day, in the yard of his New Mexico prison, an inmate hit Frank in the head with a rock and killed him.

The lawyers for the Schweitzers fought for DNA testing of the evidence from the scene — particularly a bloody T-shirt that witnesses at trial said was worn by Frank.

The brothers were exonerated this year. Ian’s conviction was set aside in January and the prosecutors dismissed the charges. Shawn’s exoneration came last month. The judge concluded that “DNA technology has caught up in this case to clearly exonerate the three boys from the commission of the crime.”

County prosecutors were under enormous pressure to bring cases to trial over the death of Dana Ireland. (Screenshot: Honolulu Star-Bulletin)

Ian spent 26 years in prison. Frank was killed in prison. And long after he finished probation, Shawn was guilt-ridden about his plea and his brother. All the while, Ireland’s real killer is at large.

What can we make of this mess?

British courts have a smart phrase to describe a criminal conviction or verdict founded on inadequate evidence or obtained through a miscarriage of justice. The conviction is “unsafe.”

Calling something unsafe suggests it’s dangerous like a live electrical wire or standing on a beach to welcome a tsunami. That’s exactly what it is. Before judges punish people, before we remove someone from their families and community and put in cages or institutions for what may be the rest of their lives, the conviction must be sturdy, reliable and safe.

Sadly, we don’t use this phrase in the United States. Evidence may be questioned after the verdict and conviction, but it’s extremely difficult to exonerate those who may have been wrongly convicted.

Part of it has to do with the review process itself. Prosecutors have traditionally and typically stood by the safety of their convictions. Reviewing the safety of a conviction is the stuff of defense lawyers.

But that stance has changed in some places. Local district attorneys have started their own internal review process. Conviction Integrity Units are kind of a quality control unit within a prosecutor’s office reviewing the safety of a conviction.

Because local prosecutors are highly decentralized across the country, keeping track of them all can be difficult. The University of Michigan Law School has the National Registry of Exonerations and has identified nearly 100 CIUs in the United States. All but one were established within the last 10 years and about half have not yet exonerated a conviction.

So how does Hawaii measure up? Not all that great.

For starters, there are no CIUs in any county office. The State Attorney General doesn’t have one either, it confirmed. A bill was introduced in the Senate in 2013 to establish one at the department, but it went nowhere.

The closest thing to one came out of the Big Island with the Schweitzers. In 2019, Hilo prosecutors entered into a “conviction integrity agreement.” It was a first for Hawaii. It meant that prosecutors agreed to work with defense lawyers in their review of the evidence — particularly the DNA testing.

Shawn and Albert Ian Schweitzer
Shawn and Ian Schweitzer after Judge Peter Kubota vacated Shawn’s convictions in the Ireland case. (Kevin Dayton/Civil Beat/2023)

It worked. Prosecutors ultimately agreed that the convictions were unsafe and when their convictions were set aside, the state moved to dismiss the charges.

Conviction integrity units or agreements dispel the erroneous perception that prosecutors are lawyers for crime victims. Far from it. The lofty mission statements and mottos in every county prosecutor’s office set out a very different objective. When Big Island prosecutors agree to review the strength of their Schweitzer convictions and ultimately agree that they’re unsafe, they are fulfilling their mission to “pursue justice with integrity and commitment.”

Such a mission isn’t all that different from the other prosecutors in Hawaii. Maui prosecutors aim to “pursue justice with integrity, fairness, and compassion” but don’t have a CIU and identify a “victim-centered approach” to prosecuting crime.

Kauai similarly aims to “promote the fair, impartial and expeditious pursuit of justice in every case.” And to find anything resembling a mission statement for Honolulu, you can easily get lost among the mug shots, but eventually I found it on their seal: “to preserve and defend justice.” Other than the Big Island, prosecutors also don’t seem to be entering into conviction integrity agreements.

It could end up costing the taxpayers.

In 2016, the Legislature — recognizing the growing number of exonerations across the country — found the wrongly convicted and imprisoned “have distinct challenges re-entering society, and have difficulty achieving legal redress due to a variety of substantive and technical obstacles in the law.

It empowered those who were convicted and imprisoned but later deemed “actually innocent” to sue the State and seek up to $50,000 for every year of actual confinement. For someone like Ian, who spent 26 years in prison, those figures can add up.

But it’s not just about the money. Prosecutors should support conviction integrity out of principle. It’s part of their mission to do justice. And unless they’re willing to go back and take another look, what conviction is truly safe?


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About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at ben.lowenthal@civilbeat.org.


Latest Comments (0)

If it is important enough for sports referees to review close decisions, how much more important is it when the matter concerns a person's life and freedom (or not). It should not be procedurally difficult to have an honest review of facts, including those that come to light many years later. Justice demands nothing less!

Jon · 1 week ago

Honolulu decided to have its prosecutor elected rather than appointed years ago when its then prosecutor, Mr. Togo Nakagawa was seen as a political appointee doing Mayor Frank Fasi's political biddings. The thought then was that an elected prosecutor would be shielded from political influence if the office was separated from the Mayor's office. No system is perfect, particularly in political institutions. Might an elected prosecutor with complete independence from an "higher order" of accountability, i.e. the office of the mayor be in fact even more political in deciding how to prosecute cases? Perhaps the Council or the next Charter Commission ought to review Honolulu's experience with an elected prosecutor and determine whether there is better accountability on the part of the prosecutor under and elected or appointing system. The office must be free from any political consideration while doing its work in the administration of justice. What happened in the Ireland's case screams out for that. Elected prosecutors can be even more blind to justice in their pursuit of personal acclaim and fame.

CPete · 1 week ago

Peope cleared of a crime are allowed to claim $50,000 for each year they were incarcerated. I suspect that they have to go to court to make that claim. Ideally, the amount should be automatically provided at the time a judge clears their names.

JusticePlease · 1 week ago

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