Probable Cause | Chapter 8

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Now, district attorneys, like all lawyers in the United States of America, take an oath that allows them to practice law.

According to the National District Attorneys Association, DAs are tasked with ensuring justice is served by, quote, prosecuting individuals accused of committing crimes.

And in my experience, DAs are typically eager to do just that, especially when they have strong evidence like a DNA match, and especially when the crime is as brutal and shocking as the murder of Dana Ireland.

But with wrongful convictions, the egos of law enforcement come into play.

DAs like to protect their conviction record and are too often reluctant to admit they got it wrong.

And it's hard not to note that in this case, had they brought Albert Laurel Jr.

to trial, there would have been massive media attention on the fact that he'd acted alone, shining a persistent spotlight on the three wrongful prosecutions that preceded it.

This might explain why, during this Zoom call between the judge, the Hawaii Innocence Project, and the DA's office, the prosecution is not forthcoming about what they knew and when.

And the judge is forced to press them for information.

Ken says that on the Zoom call, Shannon Kagawa is present, but Michael Kagami is tuning in via speakerphone through Shannon, which the judge isn't exactly thrilled about.

You know, I have him on the phone near the speaker because he's at a CLE.

And the judge said, so you're telling me that a CLE is more important than what we're talking about today?

Then he's just like, okay, fine, let's just do this.

He said, now I want to know.

Did you guys know that this guy was dead when we were in court yesterday?

And I was asking where he was at and you were telling me, did you know he was dead then?

Your honor, we cannot comment on an ongoing investigation.

So it's almost like you got the prosecutors and corporate counsel telling them to take the fifth, right?

But this is like their way of taking the fifth.

She might as well say, yeah, I can't incriminate myself.

That's what I'm hearing.

Now, she's saying I can't comment on an ongoing investigation.

What I'm hearing is I have a constitutional right.

under the Fifth Amendment not to incriminate myself.

And my attorney's advising me not to answer this question.

And so the judge told her.

And Mike, he said, now you got an ethical obligation, a duty of candor to the court.

And that means not even misleading a judge.

Because when we left Thursday, like I said, we took a vote.

The majority of the people in our meeting was like, he's in custody.

Because that's the impression they were trying to give.

That's misleading.

Because you're thinking ongoing investigation, I can't comment on it, that they may have him in protective custody under an assumed name, right, for his protection or whatever.

Or they may have him in the police office, you know, the Hilo basement, you know what I mean?

Whatever.

Because

you have to log people in at the jails.

But maybe, you know, the police stations have holding cells, you know, bring a DUI in, right?

You may not have to log him into the system.

And so they may have him at the local station in the holding cell.

So all this stuff is, right?

And so everybody's thinking,

right?

Because if he's dead, ain't no ongoing investigation.

That's the way we're, you know, so they never said he was dead.

But I guess between the time that the judge knew he was dead, right?

And they never disputed that.

They never said he was dead.

The first time they said he was dead was when the police chief did his conference Tuesday or Monday, whenever that was, Monday or Tuesday.

Lynn Kawano from Hawaii News Now breaks the news of the suspect the night before the press conference, sending shockwaves throughout the island.

The Hawaii Innocence Project learned in February the lab identified a possible suspect.

Police and the FBI started surveillance.

The man was seen discarding a fork in public, and that fork was sent to the lab for more testing.

On July 3rd, results confirmed a match.

On July 19th, Hawaii police officers with a search warrant got a cheek swab from the man.

Days later, last Tuesday, the man was found dead in his home, an apparent suicide.

The next day, the DNA results from the cheek swab returned, showing a positive match.

On July 29th, the Hawaii Police Department holds a press conference, and the chief of Hawaii PD, Ben Moskowitz, notifies the public that, yes, there was a DNA hit.

And they did, in fact, go question Albert Laurel Jr.

specifically on July 19th.

I have a brief statement about some recent developments in the Dean Ireland case and then I would be happy to answer any questions you might have.

In the nearly 33 years since Dana Ireland was kidnapped, raped and killed, the Hawaii Police Department has remained resolute in investigating this case and following that evidence wherever it might lead.

We remain committed to solving this case and helping bring closure both to the Ireland family and to the Big Island community.

Earlier this year, an FBI agent from the Honolulu Field Office contacted our police investigators with the names of some people who could potentially be identified as unknown male number one.

One of the names provided was that of 57-year-old Albert Lauro Jr.

Lauro Jr.

lived in the Capoho area, which is the scene of the Ireland murder, at the time of the murder.

In the weeks since, investigators collected a utensil that Lauro Jr.

had been using after he discarded it, and the DNA from that utensil was analyzed and found to be a match to unknown male number one.

Tragically, Lauro died on July 23rd.

So there has been significant reporting.

There's been some filings for a case that's coming up on Tuesday.

And there have been three main issues that have been brought up through that reporting and through that filing that I wanted to address before I take any questions.

I'm Amanda Knox, and this is three.

Chapter 8 Probable Cause

According to Chief Moskowitz, investigators asked Laurel to come in for an interview, to which he agreed.

And during this hour or so interview, they obtained a direct swab for comparison from him.

At the time, investigators say they didn't arrest him because they believed there was insufficient evidence to prove he intentionally or knowingly contributed to the death of Dana Ireland.

Once Laurel indicated he wanted to leave, they let him.

And shortly thereafter, Albert Laurel Jr.

died by suicide, taking whatever truth he carried with him to his grave, leaving the same cloud of doubt hanging over Ian and Sean Schweitzer.

Knowing everything we know up until this point, it feels like Laurel Jr.

was the key to finally solving Dana's case once and for all and getting true justice.

If Hawaii PD had arrested him instead of letting him leave that day.

Chief Moskowitz, however, doesn't view this situation as black and white.

The second question I want to address is what would have happened if Laurel had been arrested?

on or around July 19th when we brought him in for a consensual interview.

Would he still be alive today?

So, the answer to that again is a little bit complicated.

We have to take a look at what would have happened if we had made an arrest without probable cause.

As any good attorney, defense attorney, or prosecutor, or police officer will tell you, if you make an arrest without probable cause, anything that follows that arrest, whether it be a confession or physical evidence or the identity of another witness, anything that arises out of that arrest is going to be challenged based on what we knew during the arrest.

So, we face the very real possibility that if we had arrested Mr.

Laurel without probable cause,

that anything we gathered as a result of that process could be excluded, which is absolutely not what we wanted.

Probable cause.

A phrase you're going to hear a lot from the chief of police, as well as the Hawaii Innocence Project.

It's a principle enshrined in the Fourth Amendment.

The Fourth Amendment applies in Hawaii like it does anywhere else in the United States.

I mean, this is not like, okay, the Fourth Amendment stops at California and can't cross the Pacific.

Right.

So in other words, the meaning of probable cons,

right?

The definition of probable cause under Fourth Amendment is the same.

But the bottom, I mean, you know, the DNA, everybody knows DNA, once it's a match, is probable cons.

I mean, they didn't have a match in Ian's case.

The founders left the definition of probable cause vague.

Just like many terms in the Constitution and Bill of Rights.

And it was left to the courts to to work out and refine the definition through case law over the last 250 years.

And other legal systems around the world have followed suit.

There's a version of probable cause in Italian law, for example.

My arrest required probable cause, and the police got it after coercing me into making false statements.

Despite how incoherent and self-contradictory those statements were, and how they were contradicted by the physical evidence at the crime scene, my arrest was still validated.

It's not unlike this case, where Frank Pauline's twisting and contradictory stories were obviously unreliable but still sufficient for the police to issue an arrest warrant.

That's because with terms like probable cause, the police walk a fine line.

It's often less about what's legal and more about what they can get away with.

If the public is out for blood and they want somebody to be held accountable, as was the case for Dana Ireland's murder and after the murder of my roommate in Italy, then the courts are less likely to hold police accountable for stepping over the line of what truly constitutes probable cause for arrest.

And the police are more likely to take action without sufficient evidence.

What's baffling in this case is that the police had rock-solid evidence, a DNA match.

And yet, they erred on the side of being overly cautious when it came to probable cause and issuing an arrest warrant for Albert Laurel Jr.

The other thing to consider is this.

If we had made the decision to arrest Mr.

Laurel on July 19th, then his name, his identity would have been made public several days before he ultimately decided to commit suicide.

I can't imagine if he had been arrested, that within 48 hours as required by Hawaii revised statute, that the prosecutor's office or any state agency would have authorized us levying a charge, which means that within 48 hours, Mr.

Laurel would have been released and all of you would have been standing in his driveway to welcome him home.

Because it's a story, right?

It's important.

So there were parts and there were pieces of the investigation that we held close to the vest, but we did that on purpose.

As I mentioned, what I feel would have been the best evidence in this case would have come from Mr.

Laurel.

Unfortunately, we're not in a situation where we can get that from him now.

We, of course, wanted to hear Chief Ben Moskowitz's perspective on this, as well as answers to several other questions.

To our surprise, he agreed to sit down with us during this same trip to Hawaii.

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My name is Ben Mosquix.

I'm the chief of police for the Hawaii Police Department.

I've been here about a year and a half.

Before joining the Hawaii Police Department, I was a major in Honolulu in the Honolulu Police Department, and I worked there about 22, 22 and a half years.

I appreciate the opportunity because it's very difficult to squeeze a kind of a freshman-level constitutional law class that a lot of people don't have or don't understand into a 20-second soundbite that is not going to translate well.

And that's why this is perfect, and I appreciate the opportunity.

So in the criminal justice world, When police get sent to a case or there's some sort of report of some sort of crime, we determine that a a crime has occurred or we have probable cause to believe that a crime has occurred.

The threshold for us to apprehend a suspect, to issue a citation, like for driving without a license, for instance, or to make a physical arrest is that we need to have probable cause.

So the law in Hawaii defines probable cause as evidence that would lead a reasonable person to believe that a crime has been committed and that the suspect committed the crime.

That differs significantly from the level of evidence that we would need to convict someone.

So, in order to convict someone, the Constitution sets forth a much higher burden, right?

A burden of proof beyond a reasonable doubt.

Chief Moskowitz claims that the risk they would have been taking by arresting Albert Laurel Jr.

at this stage of the investigation was too big a risk to take.

One that would have tanked their case down the line if they went to trial.

So, in this particular case, in order to arrest a suspect, whether it be issue a citation in lieu of physical arrest or physically arrest them, which would mean bring them to the station, take their fingerprints, take their picture, and at that point take a criminal investigation and confer that case with the prosecutors and let the prosecutors decide are they going to accept the case?

Are they going to send the case back and want more investigation?

Are they not going to accept the case?

That conferral process happens after.

this decision by the investigator, is there probable cause or not for an arrest.

So again, because each crime contains multiple elements often, we have to be able to establish probable cause for each element.

So back to our shooting example, the fact that someone died is one of the elements, but the intent of the person is another of the elements.

So we would have to be able to establish each of these elements and probable cause for each of the elements in each crime.

All right.

So I hope that makes some level of sense.

Chief Ben Moskowitz wears several hats for the Hawaii Police Department.

Not only am I the police chief, I'm also a coroner.

I actually ordered myself some scrubs.

I'll show them to you.

They just showed up the other day.

I got here and I was like, oh, I'm the coroner too.

We need to parse that out.

There needs to be an independent review body besides the police department.

So anyway, sorry, back to the story.

This is an interesting point because, yes, it does differ state to state.

Some coroners are elected, kind of like sheriffs, but then in other states, they are appointed, like police chiefs.

Now, if you're a police chief and a coroner, that's a fraught combination.

Coroners are responsible for determining cause and manner of death, and whether they rule a death to be a homicide or suicide or accidental or medical can lead other agencies, like police, to take action against potential perpetrators.

In an ideal situation, there would be a firewall between these occupations.

Otherwise, information available to or determined by the coroner can bias an investigation.

That's why an independent review, like Chief Moskowitz referred to, is super important.

So when he kills himself, it's our responsibility as the coroner or my deputy coroners that are out there to help establish evidence that proves manner and cause of death.

Because we contract, we don't do the autopsies, right?

The scrubs are a bit of a tongue-in-cheek joke, but they really do exist.

So we contract out the autopsies, we contract out other things, and then we put all that together and we have a physician sign off on whatever the cause and manner of death is.

But that's part of our responsibility.

And along with that responsibility comes access to information.

So when Albert Laurel Jr.

dies by alleged suicide, Chief Moskowitz is immediately made aware.

So he has issues with Ken Lawson calling the morgue in Honolulu.

Wouldn't it have been much easier to call us and ask us?

Or to call me if they didn't trust the investigators or to call the mayor or to call the prosecutor?

Or, I mean, there's got to be some level of at least try

the right way to collaborate.

In Hawaii, collaboration is a huge thing.

I've lived on the mainland, I've lived all over the world.

It's just, it's different here.

The way that people treat each other typically and the way that groups, even that groups that may disagree strongly on things, work together here is incredible.

And there doesn't seem to be any of that.

For them to have called around to the morgue, well, first of all,

again, the coroner happens to be the police chief.

So he didn't talk to the coroner or the medical examiner because he didn't.

I mean, he may have called the morgue where the bodies are kept and talked to somebody who confirmed something they may or may not have should have been able to.

How much easier would it have been to pick up the phone and call or send an email?

And if we don't get back to him or we say, pound san, we're not going to tell you, then all right.

But why not try the front, try to see if the front door is unlocked before you try to find a window to sneak through on the backside.

I mean, stuff like that makes it difficult to continue to try to foster a collaborative relationship when then that turns into bombs being hurled through filings that, you know, the police department intended, we knew we wanted him to kill himself.

Whatever semblance of a relationship existed between the Hawaii Innocence Project and HPD became non-existent from here on out.

Tensions arose with the Chief and the Hawaii Innocence Project, each pointing to each other as the reason for the demise.

There's a certain member of the Hawaii Innocence Project who's been very vocal in the media the last 48 hours who said some really mean and nasty things about the police department and what our intentions were.

And

like we've always said, anything that we can share or that has been shared that is out there that we can now comment on, we're more than willing to do that.

We're happy to put that extra set of eyes or in your case, extra set of ears on the case that could give us a perspective we hadn't considered or could lead to something that, you know, essentially, regardless of what that resource is, we want to get to the end of that trail and find out where the facts lead so we can get some sort of not only justice for the Irelands, but closure for the community here.

One, I think you're full of shit.

I mean, it's easy to say that now when it's already out.

But I don't see how the prosecutor is saying we can't come on an investigation and the chief is telling you what, it's not an ongoing investigation.

So somebody's lying, right?

If the chief is saying he could have called me and I would have told him this and all this other, right?

Then why are the prosecutors telling us that somehow, because it's not the prosecutor's investigation, it's the police investigation.

So if he's willing to share that information, why is the prosecutor saying that they can't do it?

And so that's the question that needs to be asked to them.

As far as I'm concerned, to me, it's more of that, you know, that hoodwink and bamboozle stuff that the chief been doing when you listen to him talk.

Because he pretty, he could have been a used car seller because he pretty, he's a slickster, man.

I mean, listen to the way, if you listen to the way he's talking, you better start reading in between the lines.

Because he's very careful not to tell a blatant lie.

But it's easy for the chief to sit up here and give an interview to a podcast interviewers,

right?

Anyone, after he knows he's released the name.

and be like, oh, I'm transparent.

Now, there had to be communication.

This is the reason why if you look at our subpoena, we're like sending us all the emails, text messages between Hilo, the FBI, and everybody else.

So we know really what was going on.

Because it's easy to get out front and say, hey, I was Mr.

Transparent.

Lawson never called me.

He's calling around to the morgue and all that, making all this work for himself.

And the reason why Lawson's doing that is because he knows you're going to lie.

At the end of the day, there are a whole lot of questions we wish we could get answered, Truthfully.

But even so, there are so many things we know to be true.

First, Ian Schweitzer spent over 20 years behind bars for a crime he didn't commit.

And if we're using the same logic Hawaii PD used when determining if they had probable cause to arrest Albert Laurel Jr., then you could say, Ian and Sean's arrests arguably lacked probable cause.

Second, there is factually zero forensic evidence connecting Ian Schweitzer, Sean Schweitzer, or Frank Pauline Jr.

to the murder of Dana Ireland.

All the prosecution ever had were Frank's obviously unreliable statements.

Chief Ben Moskowitz wasn't part of the original investigation into Dana Ireland's murder.

And even as of today, he is not the primary investigator on this case.

More like the spokesperson.

But he assured us during our interview with him that those in charge are on it.

If you had told me a month ago that this is where this path would have turned, I would have called you a liar and said there's no possible way.

But it's impossible to even give you a timeline when we guarantee that those will be all wrapped up and we'll have all the answers because we don't know where the path goes, right?

But what that information is and where it's going to go.

As the chief, I can't tell you that.

I don't.

The people who are actively working on this investigation every day are the people with all those details, the people who know the level of stuff that you know.

I could talk to you about HR HR and hiring practices and my budget.

We asked Chief Moskowitz about connecting Laurel to the other forensic evidence at the crime scene, such as the treadmarks.

And while they are no longer able to question their newest prime suspect, they do have an important item of his they were able to gather at the site of Laurel Jr.'s death.

So we did collect his cell phone and the cell phone, like I said, got,

as I mentioned in the press conference yesterday, it's taken a while and it's taken some technology and it's taken a federal partner to have the right technology and the right amount of time to crack into the cell phone.

But as of yesterday, we're into the cell phone.

That was as of July 2024.

And as of today, we are still waiting for answers.

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At the same time as the Chiefs' press conference in July of 2024, Ian and Sean Schweitzer are headed back into the same courtroom they had been in several times by this point.

And this time, their hope is to get a little closer to proving factual innocence so Ian and Sean can file a civil suit and receive compensation from the state.

In Hawaii, we have a law where you can be compensated for every year you spent in prison.

If you were wrongfully convicted, Ian has yet to collect that, and he's been out now for 10 months, nine months.

And as far as I know, no one has been able to collect on that since the law was passed.

And the problem is you need to be declared innocent.

So not just not guilty, not just withdrawal of your plea agreement or vacating the conviction.

You need to be declared innocent.

We'll see if that gets done here with the Schweitzers.

Remember, the state has already dismissed the charges against Ian and Sean, and the world now knows the identity of unknown male number one.

So you'd think it wouldn't be too much of a leap for the prosecution to go along with a finding of factual innocence.

But the state stands firm in their opposition to it.

They require proof of factual innocence, they say, not merely legal insufficiency or procedural flaws.

And this is where I get triggered.

The presumption of innocence is one of the bedrock principles of any reputable justice system.

The burden is on the state to prove guilt, and that's where it should be.

But once a conviction has happened, the burden of proof shifts, and it's now on a defendant to prove, by meeting various technical legal standards, like a preponderance of the evidence, that they are innocent.

This makes sense in the abstract, but when a wrongful conviction is based on junk science, bogus eyewitness testimony, or a false confession, even after all that bogus evidence is refuted, an innocent person is still often put in the near impossible position of having to prove their innocence.

It's incredibly difficult to prove a negative because of another bedrock principle of justice.

Absence of evidence isn't evidence of absence.

It is possible to commit a crime and for investigators to fail to pick up your DNA traces.

This gives the prosecution lots of room to explain away inconvenient facts.

In my case, after my acquittal, when I was retried for the same crime, there was no longer any DNA to hang the case on.

That supposed evidence had already been ruled lab contamination by independent experts.

And so the prosecution argued a case based entirely on character evidence.

that I was the kind of person who would orchestrate a murder orgy.

It didn't matter that there was no forensic evidence linking me to the crime.

I was found guilty again.

It was like my guilt was presumed as a default state of affairs, and I had to somehow convince them out of that.

This happens frequently in wrongful convictions, and it's the same position the Schweitzer brothers find themselves in when trying to convince the state of Hawaii to declare them factually innocent.

On Tuesday, July 30th, 2024, Ian, Sean, their mom and dad, and other members of their family walk into a courtroom once again, alongside their legal teams, and our team, who traveled back to Hawaii as soon as they heard this press conference was happening and the hearing was confirmed.

As we've mentioned in previous episodes, factual innocence is a long process.

Everything involving a wrongful conviction takes a lot of time, and time is more precious than ever before when you've already lost so many years fighting for your freedom.

The July 30th hearing lasts almost two hours, and many members of the Schweitzer's legal team speak in front of the judge.

The same judge, Judge Peter Kubota, who overturned the brothers' convictions back in 2023, presides over the hearing.

Following case number three, CSP 23-3, Albert Harris Schweitzer v.

State of Hawaii, also on the calendar is three CPS, I'm sorry, CSP 23-17, John Schweitzer versus State of Hawaii.

One motion for finding of actual innocence filed March 7th, 2024.

Two, joint petition for relief pursuant to HRS chapter 63.

Good morning.

So we have several matters to deal with today.

First of all, might as well get to the state's motion to continue this matter.

States asking to continue the hearings hearings

on the grounds that there's continuing investigation and they wish to continue for three weeks.

The board will also note that the motion for finding of actual innocence was filed by

the Schweitzer brothers on March 7, 2024.

That's almost five months ago that this motion has been pending and the state filed its response on Friday, last week Friday, as I ordered them to do.

So the court is prepared to go forward on this motion for finding of actual innocence.

But prior to today's hearing, new matters have come up which are of material importance as to the motion for finding of actual innocence.

So prior to getting to the motion for a finding of actual innocence, the court will hear the arguments on the motion to preserve and the motion to compel discovery.

In her arguments, Shannon Kagawa from the prosecution team is leaning in hard that the statements made and the confessions that were given should be considered credible.

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 is also a fact that Mike Ortiz made a statement.

It's also a fact that John Gonzales 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.

But what about the DNA?

Well, the prosecution has a theory for that.

And even with the DNA evidence, Your Honor, state's not disputing that the DNA evidence shows that Albert Laurel is DNA was at scene two, or what I call scene two, at

where Miss Ireland's body was found.

But there's no evidence to say that they were not involved as well.

That's in chapter nine, which you can listen to next week.

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