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- [00:01]
Amanda Knox
Every day, our world gets a little more connected, but a little further apart. But then there are moments that remind us to be more human.
- [00:14]
Bill Harrison
Thank you for calling Amica Insurance.
- [00:16]
Amanda Knox
Hey, I was just in an accident. Don't worry. We'll get you taken care of. At Ameca, we understand that looking out for each other isn't new or groundbreaking. It's human. Amica empathy is our best policy this Mother's Day. Show the moms in your life just how much they mean to you with a stunning bouquet from 1-800-flowers.com for almost 50 years, 1-800-flowers has set the standard for high quality bouquets. Right now, order early from 1-800-FLOWERS and save up to 40% on gorgeous bouquets and one of a kind arrangements guaranteed to make her day. Save up to 40% today at 1-800-flowers.comSXM that's 1-800-flowers.ComSXM. the official florist of Mother's Day, Randy Roth of the Hawaii Innocence Project, attended the hearing alongside members of our team and witnessed these arguments firsthand.
- [01:14]
Keith Shigetomi
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.
- [01:31]
Amanda Knox
But for her to use that occasion.
- [01:34]
Keith Shigetomi
With the camera rolling to say, well.
- [01:37]
Amanda Knox
You could have been involved in this.
- [01:42]
Keith Shigetomi
I just thought it was very disappointing.
- [01:46]
Amanda Knox
And as a member of the bar.
- [01:49]
Keith Shigetomi
In this state, I. I just. Disappointed doesn't quite hit the note that I'm looking for, but I just thought it was outrageous.
- [01:58]
Amanda Knox
This makes me want to scream. But at this point, nothing about the state's actions would surprise Ian or Shawn. They've become numb to the antics they are willing to pull to stay squeaky clean.
- [02:13]
Randy Roth
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. Everybody got a deal on their witness list.
- [02:35]
Amanda Knox
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.
- [03:19]
Judge Kubota
Okay. I understand what Mr. Pauline's statements were because we went over them many times before. John Gonzales 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 Schweitzers in return for favorable treatment for John Gonzalez. So what did John Gonzalez testify to.
- [03:48]
Bill Harrison
At the trial for Ian Schweitzer? He testified to that on the December 24, 1991, that they had come home or they had come to the 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.
- [04:08]
Judge Kubota
Did he testify in Frank Pauline, Charles?
- [04:10]
Amanda Knox
Well, yes, I believe so.
- [04:12]
Bill Harrison
Right.
- [04:13]
Judge Kubota
All right, all right, all right.
- [04:15]
Bill Harrison
I think the. Hold on. And I think the last portion that I really wanted to talk about is what Sean Schweitzer said as far as his change of plea. You know, court's saying don't consider or 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 24, 1991, he was present during the incident in which Dana Ireland was kidnapped, sexually assaulted, and killed. He admitted to those facts. Shawn 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.
- [05:09]
Amanda Knox
Okay.
- [05:10]
Bill Harrison
And I think with that fact that if you take what Sean's statement is, as well as in statement two, 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, a Wawa scene, to die. And that's when Albert Lauer came across her, I'm sure.
- [05:32]
Judge Kubota
What did you say in the last part?
- [05:33]
Bill Harrison
You mentioned Albert Laurel, that after they left. After they left her there to die at that scene, that Albert Laurel may have come across her body.
- [05:43]
Judge Kubota
Oh, so theory is that Albert Laurel came across the body after these boys committed the crime?
- [05:50]
Bill Harrison
That could be one theory, yes.
- [05:52]
Judge Kubota
Tyrant. Is there anything else?
- [05:56]
Bill Harrison
Nothing else, you, Honor.
- [05:57]
Amanda Knox
All right, I'm Amanda Knox, and this is three, chapter nine, 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 or 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. 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 by extrapolating from proven DNA, wrongful convictions. In the Innocence Project's 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 fill 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? 1 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. One, flawed eyewitness identifications. Two, false confessions. Three, perjured testimony. Four, misconduct by police and 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.
- [11:25]
Chief Moskowitz
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.
- [12:26]
Amanda Knox
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 Scheck, co founder of the original Innocence Project, takes the floor and sets the stage for the defense's argument.
- [12:50]
Barry Scheck
Good morning. And one of the things that we really wanted to focus on, we laid it all out, of course, in the motion 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 Killer. And what the DNA testing shows, without question, is that he had sexually sexual intercourse with Dana Island. His semen was on the vaginal swabs, his semen was on the gurney. There was even a semen stain on the Jimmy T shirt. It's all Albert Laurel Jr. Now, if that's not probable cause for 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 he was, there was a clear danger he would kill himself because obviously there was probable cost of being committed a murder. Now, I leave it to Mr. Shigetomi 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.
- [14:48]
Amanda Knox
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- [16:01]
Keith Shigetomi
Yes, you, 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. Lauro, 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 that information is really important. We'll let the court decide that. There's been so much error in this case. Your Honor, we're not. Not that we don't believe the state when they say something, but we want to make sure that we get what we're entitled to, and we believe the court can be the gatekeeper in that regard by taking all the information that we requested in this motion in chambers and decide what the court will turn over to us. So, in short, you, Honor, we believe that we're entitled to this information.
- [16:59]
Amanda Knox
Okay, so here is what 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.
- [17:30]
Judge Kubota
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 has stood 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 VideoTape interview on July 19 when Mr. Laurel came into the police station. What is your position regarding the videotaped interview?
- [18:03]
Bill Harrison
Your Honor, as we stated, there is an ongoing investigation. As a police chief, I didn't watch the. What he stated, but I'm sure he said that there was still an ongoing investigation involved matter.
- [18:14]
Judge Kubota
So if there is a video, as Moscow had stated, what is the State's position regarding disclosure of this information, this video? Get Linda that.
- [18:24]
Bill Harrison
Right, John. It might be relevant, but at this time, we don't believe that they're entitled.
- [18:29]
Judge Kubota
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.
- [19:04]
Bill Harrison
Murder or the death of Dana Aerley?
- [19:06]
Judge Kubota
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 male number one that is sought to be produced?
- [19:23]
Bill Harrison
Yes, you, Honor.
- [19:26]
Amanda Knox
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. Welcome back to Listen to youo Heart. I'm Jerry. And I'm Jerry's Heart.
- [21:15]
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Amanda Knox
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- [21:28]
Chief Moskowitz
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- [21:30]
Amanda Knox
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Randy Roth
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Amanda Knox
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- [22:03]
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Amanda Knox
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- [22:47]
Amanda Knox
Bill Harrison and Keith Shigetomi both speak to Con with Michael Ortiz, the jailhouse informant, aka the prison priest whose testimony led to the second indictment and Ian and Sean's convictions. Bill Harrison speaks first.
- [23:05]
Keith Shigetomi
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 that he had 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.
- [24:11]
Amanda Knox
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.
- [24:27]
Keith Shigetomi
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.
- [24:45]
Judge Kubota
Michael Ortiz. Michael Ortiz was the person that the state referenced in their objection to your motion to determine actual innocence.
- [24:55]
Keith Shigetomi
Right.
- [24:55]
Judge Kubota
I should consider his testimony. And you personally interviewed Michael Ortiz at Tuguaro.
- [25:01]
Keith Shigetomi
At Taguaro.
- [25:02]
Judge Kubota
He admitted that he lied when he said that in rights are confessed.
- [25:06]
Keith Shigetomi
Absolutely. And one further thing on that path there. Mr. Ortiz was involved with Mr. John Gonzale's niece. They had a relationship, and John Gonzalez had also asked him to assist the police.
- [25:20]
Judge Kubota
One more question for you, Mr. Harrison. You're an officer of this court. You. 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.
- [25:37]
Keith Shigetomi
I can't tell you which. But it was an investigator they came over there with to sit down with me. They brought me some omiyage. 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. That's what he told us.
- [25:55]
Judge Kubota
And this Ortiz testified in the criminal trials against whom? Against Pauline and Ian Schweitzer.
- [26:01]
Keith Shigetomi
Exactly.
- [26:02]
Amanda Knox
And then Keith Shigetomi on behalf of Sean Schweitzer.
- [26:07]
Judge Kubota
Okay, Mr. Shigetomi, go ahead.
- [26:10]
Randy Roth
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. Scheck 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 now to 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 Shawn 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 a mission. 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.
- [29:08]
Amanda Knox
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.
- [29:23]
Randy Roth
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. Scheck 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.
- [29:51]
Amanda Knox
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. 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.
- [31:00]
Judge Kubota
That's the question that I asked all of you folks to brief in that in the writing of this statute, you know, is there some term of art beyond just plain common sense language that someone who was convicted, incarcerated, was 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. If that is a standard you're articulating, then please explain that.
- [31:31]
Bill Harrison
Okay, 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 Michael Ortiz made a statement. It's also a 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.
- [32:12]
Judge Kubota
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?
- [32:26]
Bill Harrison
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 going to read the whole statement, but Sean.
- [32:37]
Judge Kubota
I actually read exhibit two, 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, reliable admissions.
- [32:57]
Bill Harrison
Yes, those are statements that he made, your honor. All right, that is not deniable. I don't think Mr. Shige Tomi will deny that Mr. Schweitzer made those statements.
- [33:06]
Judge Kubota
Okay, I'll consider that.
- [33:10]
Amanda Knox
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 Kassen, 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 Sense.
- [34:28]
Judge Kubota
Yes, everyone can. So, Innocence Project attorneys, you'll prepare an order granting your motion to compel production with the subpoena returnable on August 1st at 9:30am and 4.3pm and we'll proceed. Okay, thank you.
- [34:48]
Amanda Knox
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. Do you know how long the average professional spends making slide decks every week? Five hours. That's almost an entire workday resizing text boxes and moving around bullet points. Well, Gamma is here to rescue you from presentation purgatory. Just drop in your notes and Gamma magically turns them into polished presentations, websites, social posts, you name it. No design or coding skills required. Start for free at Gamma App and get a month of Gamma Pro for free with promo code. Podcast how is it that Australians are so laid back? It's simple. They're all wearing comfy underwear. Bons undies to be precise. Now you can get that wildly comfortable feeling with soft, high quality fabrics designed for all day wear. To celebrate our launch in the States, we're giving you 25% off your first order. And if you don't love them, we'll give you your money back. Shop our range of bonds, underwear, bras and sleepwear@bondsaustralia.com that's b o n d s australia.com bonds made for downunder.