Factual Innocence | Chapter 9

Hi everyone, I'm Delia D'Ambra, an investigative journalist, avid park enthusiast, and host of

Park Predators, a weekly podcast that explores the dark underbelly of beautiful landscapes we

all know and love. Each week, I guide you through national parks and forests across the globe and

share stories that highlight how the most beautiful landscapes can be equally as dark and sinister.

So whether you're a park enthusiast or are always diving into true crime stories,

Park Predators is your next listen. Listen to Park Predators every Tuesday, anywhere you get your podcasts.
To get real business results today, you need professional-looking content. Meet Adobe Express.
It's the easy way to make social posts, flyers, presentations, and more. Start fast with Adobe-quality templates and assets.
Make edits in one click. Stay consistent with brand kits and collaborate easily with colleagues.
Your teams can finally create with AI that's safe for business. Try Adobe Express, the quick and easy app to create on-brand content.
Visit adobe.com slash express. Whenever I need to send roses that are guaranteed to make someone's day, the only place I trust is 1-800-Flowers.com.
With 1-800-Flowers, my friends and family always receive stunning, high-quality bouquets that they absolutely love. Right now, when you buy a dozen multicolored roses, 1-800-Flowers will double your bouquet to two dozen roses.
To claim this special double roses offer, go to 1-800-Flowers.com slash Pandora. That's 1-800-Flowers.com slash Pandora.
Randy Roth of the Hawaii Innocence Project attended the hearing alongside members of our team and witnessed these arguments firsthand. The prosecutors were acting as though it didn't matter that what little evidence they had had has pretty much fallen by the wayside along the way.
They acted as though you guys may have done terrible things, but for her to use that occasion with the camera rolling to say, well, you could have been involved in this. I just thought it was very disappointing.
And as a member of the bar in this state, I just disappointed. Doesn't quite hit the note that I'm looking for, but I just thought it was outrageous.

This makes me want to scream.

But at this point, nothing about the state's actions would surprise Ian or Sean.

They've become numb to the antics they are willing to pull

to stay squeaky clean.

They already came to the conclusion in their mind

that we're going to railroad the Schweitzer brothers and that's it.

And we're going to give John Gonzalez his immunity and his mother the immunity and that's it.

And we're going to let Mike Ortiz out of jail again.

Well, not only them, I think pretty much everybody got a deal on their witness list.

Throughout the hearing, the judge interjects and pushes back, specifically questioning the prosecution's logic. It's deeply uncomfortable to watch a representative of the state take such a righteous stance and dismiss the opportunity to grant actual innocence.
But from the beginning, the defense team has hoped the judge they were given would truly listen and rule in an unbiased way. And Judge Kubota continually proves to do just that.
He often responds with critical questions to the state's argument that ongoing investigations justify withholding evidence, especially since Laurel's DNA has been confirmed and he is now deceased. Okay, I understand what Mr.
Pauline's statements were because we went over them many times before. John Gonsalves was the half-brother of Frank Pauline, who was arrested or convicted of a drug dealing charge.
And Frank Pauline offered to give testimony implicating the Schweitzer's in return for favorable treatment for John Gonzales. So what did John Gonzales testify to? In that he put at the trial for Ian Schweitzer he testified to that on the December 24th 1991 that they had come home or they had come to house, that Frank Pauline got out of the car, and he said that he recalls Ian and Sean being there, as well as, I believe, I don't know exact words, but he said there was somebody else, and he didn't know who it was.
Okay, did he justify in Frank Pauline's trial as well? Yes. I believe so.
All right, all right, all right. I think the...
Sorry, hold on. And I think the last portion that I really wanted to talk about is what Sean Schweitzer said.
Sean, as far as his change of plea. You know, the court's saying don't consider that there was a proffer made or unreliability of the polygraph.
Sean Schweitzer came before the court, signed the change of plea form and did plead. I think the court has to consider the fact that he did say that on December 24th, 1991, he was present during the incident in which Dana Ireland was kidnapped, sexually assaulted and killed.
He admitted to that those facts. Sean Schweitzer himself put himself involved in this crime.
The court has to consider, in determining if somebody's actually innocent, the fact that he admitted to his participation. And I think with that fact that if you take what Sean's statement is, as well as his statement to as well as his change of plea, it could still be consistent with the fact that if you take what Sean's statement is as well as in statement to as well as his change of plea it could still be consistent with the fact that they left her left Miss Ireland at the second scene of Wawa scene to die and that's when Albert Law came across her.
I'm so when did you say the last part you mentioned Albert Law? That after they left after they left her there to die at that scene, that Albert Lauro may have come across her body. Oh, so this theory is that Albert Lauro came across the body after these boys committed the crime? That could be one theory, yes.
All right. Is there anything else? Nothing else, Your Honor.

All right.

I'm Amanda Knox, and this is Three. Chapter 9.
Factual Innocence. Let me reiterate what you just heard.
Prosecutor Shannon Kagawa is stating a theory in their case that despite everything they have learned up till this point, they can't confidently say that the Schweitzers and Frank Pauline Jr. weren't involved in Dana's murder.
You want to believe that our justice system is just, that it always prioritizes the truth over the egos and reputations of the flawed humans who carry it out.

But all too often, it doesn't.

When I was first accused, I had assumed that the courtroom was like a scientific laboratory, where lots of contradictory evidence was sifted and analyzed and boiled down to truth beyond a reasonable doubt.

It was a painful discovery to learn how naive that was, that the courtroom is more like a battleground of storytelling, where the most compelling and not necessarily the most truthful story wins. In the wake of my wrongful conviction, I wanted to understand how the authorities could have gotten it so wrong.
And that led me to connect with other wrongly convicted people, to see the patterns and to study the cognitive biases that lead well-intentioned people to commit grievous harm, all the while thinking they are delivering justice. One of those biases is referred to by social psychologists as the just world fallacy.
We all have a tendency to think that there is a moral balance to the universe, that good things happen to good people, and if bad things happen to a person, they must have had it coming. It's no wonder that so many of us can fall asleep at night confident that our prisons are full of bad guys and only bad guys.
Accepting the truth is uncomfortable and unsettling, and the truth is that the system gets it wrong far too often, and that prosecutors will pursue bogus cases long after the evidence is clear, all to protect their conviction rate and to avoid admitting fault. After all, they're human, And nobody likes to be wrong, especially when the stakes are so high.
In late 2023, the National Institute of Justice released a report called The Impact of False or Misleading Forensic Evidence on Wrongful Convictions. We'll link this report out in the show notes, and I highly recommend you read it in full.
But for now, consider this. By extrapolating from proven DNA wrongful convictions in the Innocence Projects database, it is estimated that 4 to 6% of people who are currently incarcerated are innocent.
About 1 out of 20. And once you consider that there are close to 2 million people in our prisons and jails, that's potentially as many as 120,000 innocent people locked up.
You could film Madison Square Garden six times over with the wrongly convicted. No process is perfect.
Whether that's cancer diagnosis or automobile manufacturing, errors are inevitable. But what rate of error should we accept when people's lives are at stake? One in 20 seems far too high.
And the thing is, we know how to reduce this error rate because we know what contributes to wrongful convictions. 1.
Flawed eyewitness identifications. 2.
False confessions. 3.
Perjured testimony. 4.
Misconduct by police and prosecutors. 5.
Inadequate defense counsel. 6.
Faulty forensic prosecutors. Five, inadequate defense counsel.
Six, faulty forensic science. Nearly all of these factors played a role in my case, and the same is true of the Schweitzers.
The whole case began with perjured testimony and eyewitness misidentification. Sean gave a false confession.
Both brothers had inadequate defense, and the prosecution leaned on junk science like bite mark analysis. But the most troubling factor of all is official misconduct.
As you heard last episode, Ken Lawson suspects that the police were just fine running the risk that Albert Laurel Jr. would kill himself if not arrested

because taking his secrets to the grave

would be less embarrassing for them.

And it would allow the prosecution to maintain

that the Schweitzer brothers were still possibly involved.

But official misconduct is a serious allegation.

When we spoke with Chief Moskowitz,

he shared what their intentions have been since identifying Albert Laurel Jr. We wanted nothing more than to get, and I think I mentioned this before, the best, most accurate information about Laurel's involvement was inside Laurel's head.
That's what we wanted. That's what we still want.
Unfortunately, we can't get it from him. So we try any other way we can to get what there is.
I don't know what's on his phone. I don't know what's in his house.
I hope that we can get search warrants for those things. I hope that he explained his involvement to his spouse or to his children, or he left a diary, or I hope all those things so that we can have some clarity.
Because at the end of the day, without that clarity, you're right.

There will never be your smoking gun. It may drag half the people in one direction and half the people in the other direction.
But without that resolution, how do you ever say that one side or the other or both or neither is correct or incorrect? That's me as a skeptic and me as someone who's trained to look at evidence and analyze evidence and make decisions and form opinions based on what I can see. So it is, it's very messy.
Nonetheless, during the hearing, proving why this happened wasn't the goal. The goal was to answer how this happened and what needs to be done to make things right.
Tuning in virtually, Barry Sheck, co-founder of the Original Innocence Project, takes the floor and sets the stage for the defense's argument. Good morning.
And one of the things that we really wanted to focus on, we laid it all out, of course, in the motions to compel, that the FBI agent here, it's clear, was working with local police. She was trained on how to do this genetic genealogy.
We had retained Stephen Kramer, who found the Golden State killers killer and what the DNA testing shows without question is that he had sexually in court sexual intercourse with Dana Island his semen was on the vaginal swath his semen was on the gurney there was even a semen stain on the GBC t-shirt. It's all Albert Laurel Jr.
Now, if that's not probable cause of homicide, I don't know what is. I am sorry if I am upset and perhaps raising my voice here.
And I apologize yesterday at our roaming Room conference for being so passionate about this. But I've been doing this since 1992, innocence cases, and a lawyer since 1975.
And I can't tell you, I have never been more disturbed by the conduct of law enforcement here because we made it clear as day that if they didn't arrest him to take a swab certainly, there was a clear danger that he would kill himself because obviously it was probable cause to believe he committed a murder. Now I leave it to Mr.
Shigatomi and Mr. Harrison to argue that point further with the court because they are Hawaiian lawyers and they know this from their own experience in cases.
How could popular Mormon family vlogger Ruby Franke end up being convicted for child abuse? The answer to that question is Jody Hildebrandt. But Jodi's manipulation extended far beyond the Frankie family, seemingly leaving a trail of victims in her wake.
This ID documentary event features never-before-seen interviews from survivors who found the courage to expose her systematic abuse. Ruby and Jodi, a cult of sin and influence, premieres September 1st at 9 p.m.
Eastern on ID. You're familiar with those crucial early moments in cases? The first sign something's wrong? The suspicious person lingering in the shadows? Traditional home security doesn't help then.
It only reacts once a home invasion or break-in has already occurred. But SimpliSafe's Active Guard Outdoor Protection is designed to be proactive.

Its AI cameras spot that lurker and live agents can talk to them,

turn on spotlights and call for police

before they even try the door.

It's about stopping the story

before it becomes a true crime case.

Since getting SimpliSafe,

I can now leave my home for a long weekend

and not have a single worry that it's unprotected.

Plus with live updates to my phone,

it's like I'm still there.

And better yet, when I am home, I feel the protection in real time, knowing my home is

secured and monitored. There's a million and one things to worry about as an adult, but thanks to

SimpliSafe, my safety isn't one of them. Visit simplisafe.com slash three to claim 50% off a

new system with a professional monitoring plan and get your first month free. That's simplisafe.com

slash three. There's no safe like SimpliSafe.
Bill Harrison, representing Ian Schweitzer, focuses his argument on law enforcement's conduct, or lack thereof, while also touching on the DNA evidence, the flawed witness testimonies, and the lack of physical evidence. Yes, Your Honor.
The court's very familiar with the facts. I'm not going to spend too much time on the facts here.
As you know from yesterday's pronouncement by the chief of police here, they spent a period of time with this individual, Mr. Laro, interviewing him.
And apparently they had video going at the same time of the interview, as well as statements and apparently some discussion with some witnesses relative to this matter as well. All of Bill Harrison is talking about.
According to the Hawaii Innocence Project, the Hawaii PD have a video recording of their interview with Albert Laurel Jr. And an FBI agent was present during it.
And the Hawaii Innocence Project wants to get their eyes on it, because it may shed light on the way previous interviews had been handled during Ian and Sean's second indictment, and maybe reveal some wheeling and dealing that was happening behind the scenes. I understand Chief Moskowitz disclosed, and I have not received any information from the office of the prosecutor of anything in this matter and the prosecutor's office is still behind this this wall saying that this is a matter of under investigation could not confirm any evidence to me so the only evidence I have is what police chief Moskovitz stated in his press release that there was a videotaped interview on July 19th when Mr.
Laurel came into the police station.

What is your position regarding the videotaped interview?

As we stated, there is an ongoing investigation as a police chief.

I didn't watch what he stated, but I'm sure he said

that there was still an ongoing investigation involved in this matter.

So if there is a video as Moskowitz stated,

what is the state's position regarding disclosure of this information, of this videotape interview? That... Right.
Gerard, it might be relevant, but at this time we don't believe that they're entitled. Why? And I asked you before, I believe three times in our confidential conferences, what investigation is still ongoing.
The murder was committed, the only person delivered as being unknown male number one has now committed suicide and your office wasn't even able to disclose that to me. You're unwilling to even disclose that fact at our conference.
I believe it was two days after he died. What ongoing investigation is there? Into the murder or the death of Dana Ireland.
All right that is your position that there is still an investigation ongoing into the death of Dana Ireland and so the state is opposing disclosure of any evidence regarding the investigation of unknown bill number one that is softly produced. Yes, sir.
As the hearing continues, the looks at the defense table are hard to ignore, specifically from Sean and Ian. Sean is harder to read, maybe because of his years of needing to blend into society and not draw attention.
Ian is quiet and by no means causing a fuss, but if you could see him, you'd feel his pain, his frustration, his disappointment, and even anger at what the state, including prosecutor Shannon Kagawa, is still trying to say about him. Even after 24 years in prison, even after Ian's charges were dropped, and even after someone else's DNA was connected to the case, they persist in searching for guilt that isn't there.
I know exactly what that feels like. They found the real killer in my case, whose DNA was all over the crime scene, just two weeks after the murder, and nearly a year before I even went to trial.
It didn't matter then, and it doesn't matter today. A cloud of suspicion still hangs over me.
To many, I'm still guilty until proven innocent. That is the look on Ian's face.
The anxiety that he'll have to prove himself forever and ever. At the very least, I can point to Italy's Supreme Court, which declared me factually innocent.
And Ian and Sean deserve the same. And it's not looking like they'll get what they deserve.
But something interesting comes up during this hearing that surprises a lot of us, including the judge. Hi, So Supernatural listeners.
If you've been with us for a while, you know how important uncovering the truth of a story is for Yvette and me. Yes, and we know firsthand how vital it is to keep a loved one's spirit at the heart of the stories we share.
And if you're like us, you value it too, which is why we know you will love Dark Down East. Resident Maynor and investigative journalist Kylie Lowe is known for her

gripping storytelling style

and honoring the human at the center

of the story. And she digs

through the archives, works with families

and law enforcement to bring you the

facts of each case. Because

thoughtful storytelling requires

empathy for humanity.

You can listen to Dark Down East

every Thursday, wherever you get your podcasts.

Bill Harrison and Keith Shigatomi both speak to conversations they had with Michael Ortiz,

the jailhouse informant, a.k.a. the prison priest,

whose testimony led to the second indictment and Ian and Sean's convictions. Bill Harrison speaks first.
One of the things that's important here is that the whole reason why these two individuals were actually roped into this matter was the fact that some jailhouse snitches said they were involved. and one of the affidavits we presented to the court was my affidavit.
We went up to Saguaro, and this has got to be 10, maybe 10 years ago today, and we interviewed Michael Ortiz, which was one of the main witnesses the state had in this case. And Mr.
Ortiz told us that what his testimony that he gave to the court was not true. That in fact, he got some benefit from testifying on behalf of the state in the case.
He got some, the state apparently offered him something with regard to his parole. I don't exactly know the facts of that or remember the facts of that, but he had mentioned he lied.
And in fact, the whole testimony he had given was given to him by the investigator who went up from the Hawaii Police Department and the prosecutor at the time to actually give him facts that he didn't know about to testify to. Just note that that's a serious allegation of misconduct.
It's not just that the testimony came from a jailhouse snitch who was incentivized to lie, but that the police fed him the story they wanted him to repeat. That whole idea that there were other individuals that gave testimony as to what these gentlemen said Mr.
Ian Albert Schweitzer said is incorrect. That individual was debunked by his own words that he had lied to the court at that time.
This is Michael Ortiz. Michael Ortiz.
Michael Ortiz was the person that the state referenced in their objection to your motion to determine how to innocence. Right.
I should consider his testimony. And you personally interviewed Michael Ortiz at Toguaro.
At Toguaro. And he admitted that he lied when he said that Ian Schweitzer confessed.
Absolutely. And one further thing on that path there.
Mr. Ortiz was involved with Mr.
John Gonsalves' niece. They had a relationship.
And John Gonsalves had also asked him to assist the police. One more question for you, Mr.
Harrison. You're an officer of this court.
You said that you talked to Mr. Ortiz about HPD feeding Mr.
Ortiz with information of the case. Now, I'm counting on you as an officer of the court.
You personally heard Mr. Ortiz tell you what? He said, I can't tell you which, but it was an investigator.
They came over there to sit down with me. They brought me some omiyagi we ate, and they told us, basically told me facts I did not know to put into this statement that I was going to give the court.
That's what he told us. And Mr.
Ortiz testified in the criminal trial against Pauline and Ian Schweitzer. Exactly.
And then Keith Shigatomi on behalf of Sean Schweitzer. Okay, Mr.
Shigatomi, go ahead. Just an aside, Your Honor, I also spoke to Mr.
Ortiz back when this case was active. And Mr.
Ortiz asked me if I could help him in any way, so for whatever that's worth. So we're here, Your Honor, for the actual innocence.
And we fully recognize that Sean has the burden of proof. And so I guess the first question is, what is that standard of proof? As Mr.
Sheck said, we believe that the proof surpasses preponderance of evidence as well as clear and convincing. And I think we urge the court to acknowledge both standards, to say that regardless of what the standard is, that we've met that standard.
And that'll protect the record in this case. In terms of, well, what does actual innocence mean? No one's really said what it means.
No reasonable juror would have found him guilty beyond a reasonable doubt. And I would just say that after the contested hearing, this court has already concluded that the newly discovered evidence, newly presented evidence, was credible

and relevant, that the court further concluded that the new DNA and bite mark evidence, newly presented tire tread evidence, and the recent recantation of Sean conclusively proved that in a new trial, a jury would likely reach a verdict of acquittal, which is the federal standard. what did Sean do to make him guilty?

And what proof do you have? And the first one is, is that Sean pled guilty. Well, if you look at what the plea form says, is that Sean pled guilty by manslaughter by omission and kidnapping by omission.
That was the poison pill that was placed in the plea agreement because there are no such charges that exist legally as manslaughter by omission and kidnapping by omission. He pled guilty to charges that do not exist.
If Sean was not actually innocent because he pled guilty, then why did they allow him to withdraw his guilty plea and dismiss the case against him when they did not have to? And the reason is, is they believed he was actually innocent.

They just can't say it.

Now, the state also argued that Sean was not actually innocent because he gave a statement detailing Ian's and his involvement and Sean's involvement that may be consistent with Albert Laurel Jr. only involved in one of the crime scenes.
we submitted an exhibit in two parts that are at docket 64 and 66 in Sean's case, and that is the report of Dr. Richard Leo.
Dr. Richard Leo, by the way, is a friend of mine and a renowned expert in police coercion and confessions.
And he's prominently featured in another podcast series I made called False Confessions, which you can find linked in the show notes. And Dr.
Leo, in his opinion, stated that the statement, Sean's statement to Guillermo and the change of police statement met the criteria of proven false confessions. And as Mr.
Sheck has indicated, Sean did not pass the polygraph. And I know because I was there.
And I'm the one who spoke to the polygrapher as well as Detective Guillermo. As part of her own investigation into this case, award-winning investigative journalist Lynn Kawano is able

to find the polygraph report and review it firsthand. I had to dig down deep into our archives.
We have since changed over our systems. We have since, you know, in the newsroom, right, we're trying to keep up with the times.
And so we're using different archive systems. So it took a long time.
It took weeks and months to find some of the things that we had on this case.

And to find the polygraph, to see that the judge in that case actually says in open court,

Sean Switzer passed the polygraph.

That means he did indeed commit this crime.

To say that and now to know that, no, he didn't pass the polygraph. You know, why was that kept a secret? Why was that buried? By the end of the hearing, the team is on the edge of their seats, trying to predict how this judge, who decided to release Ian at the end of his last hearing, with zero expectation to do so, will react to all of this information.
That's the question that I asked all of you folks to brief, and that in the writing of this statute, is there some term of art beyond just plain common sense language that someone who was convicted and incarcerated is actually innocent.

That sounds like plain language speaking, and I can use common sense language,

but you're stating that the state's position is that they need to prove factual innocence. So if that is a standard you're articulating, then please explain that.

Okay, yeah. So if I'm saying that it's factual innocence,

I think the court has to look at the facts presented.

I'm not disputing what's in the findings of fact or conclusions of law. We agree to it.
Those are the facts. But it's also fact that Mike Ortiz made a statement.
It's also fact that John Gonzalez made a statement. Those are all facts that the court has to consider.
Yes, the court also can consider the statement that Mr. Harrison took from Mr.
Ortiz in his declaration. Those are both facts.
They may be conflicting, but those are still facts that the court has to consider. I don't believe that this court is here to determine the credibility of which one is true.
Those are just both facts that are presented. To say that I consider all the facts in the trial and everything that's been submitted as exhibits in the joint stipulation of facts tell me why you believe that these defendants should not be found actually innocent.
Because there's facts where they themselves have made statements that put them at the scene. If you look at the statement in States Exhibit 2 and I'm not gonna read the whole statement but There's a red exhibit too, so I'm familiar with the statements that Sean Schweitzer made.

So... in States Exhibit 2, and I'm not going to read the whole statement, but Sean...
Yes, I read Exhibit 2, so I'm familiar with the statements that Sean Schweitzer made. So what of this do you believe is still in play that I should consider? I should consider his statements to Officer Guillermo as being reliable facts,iable admissions? Yes.

Those are statements that he made, Your Honor. All right.
I'm not, that is not deniable. I don't think Mr.
Shigui told me we'll deny that Mr. Schweitzer made those statements.
Okay. I'll consider that.
I hope you're beginning to see how damning a false admission can be. Even when contradicted by DNA, prosecutors, juries, and even judges have a hard time ignoring such evidence.
In one study conducted by false confessions expert, Dr. Saul Kasson, judges were presented with several mock trial scenarios.
And even when they were given conditions in which two thirds of judges ruled to suppress the confession evidence as inadmissible, they still voted guilty 69% of the time, compared to a baseline of 17% in the neutral condition.

False admissions and confessions are that powerful in their biasing effect.

The question is, will Judge Kubota be able to see those admissions for what they are? Unreliable and irrelevant to the factual innocence of the Schweitzer brothers. At the end of the July 2024 hearing, the judge decides to schedule another hearing where he will determine if the Hawaii Police Department would be required to release

the information they have

from their interview

with Albert Laurel Jr.

and what they have potentially

uncovered since.

Yes, everyone can...

So, Innocence Project Attorneys,

you'll prepare an order

granting your motion

to complete production

with the subpoena returnable on August 1 at 9.30 a.m. in Florida, 3.00 a.m.
I will proceed. Okay.
Thank you. Then, only a month later in August, Judge Kubota calls everyone back together and tells the state they not only can't keep the evidence they have secret,

he demands they release it in a couple of days.

That's next in Chapter 10, which you can listen to next week. Hi, So Supernatural listeners.
If you've been with us for a while, you know how important uncovering the truth of a story is for Yvette and me.

Yes, and we know firsthand how vital it is to keep a loved one's spirit at the heart of the stories we share.

And if you're like us, you value it too, which is why we know you will love Dark Down East.

Resident Mainer and investigative journalist Kylie Lowe is known for her gripping storytelling style and honoring the human at the center of the story.

And she digs through the archives, works with families and law enforcement to bring you the facts of each case.

Because thoughtful storytelling requires empathy for humanity.

You can listen to Dark Down East every Thursday, wherever you get your podcasts.