‘sromomTcouRD STATE OF HAWAII: BROOK HART #723 FILED ‘The Hawai'i Innocence Project The William S. Richardson School of Law MMSOCT-9 PH 155 2515 Dole Street, Suite 255 n Honolulu, HI 96822 Telephone Number: (808) 956-6547 Xv Facsimile Number; (808) 956-5569 0 R | G | N A Lex oni me E-Mail: brookhartlaw@gmail.com Attomey for Petitioner ALBERT IAN SCHWEITZER IN THE CIRCUIT COURT OF THE THIRD CIRCUIT HILO DIVISION STATE OF HAWAI'I IN THE MATTER OF ALBERT IAN SCHWEITZER, Case No. 3SP07-1-000007 PETITIONER ALBERT JAN SCHWEITZER’S MEMORANDUM IN OPPOSITION TO JUDGES FOR JUSTICE MOTIONS FILED AUGUST. 28, 2019; DECLARATION OF BROOK HART; EXHIBITS “A"=*J"; CERTIFICATE OF SERVICE, Petitioner, HONORABLE HENRY T. NAKAMOTO PETITIONER ALBERT IAN SCHWEITZER’S MEMORANDUM IN, OPPOSITION TO JUDGES FOR JUSTICE MOTIONS FILED AUGUST 28, 2019 1. INTRODUCTION Petitioner, Albert Ian Schweitzer (“Mr. Schweitzer”), by and through his attomeys Brook Hart and Jennifer Brown of the Hawai'i Innocence Project and Susan Friedman and Barry Scheck of the Innocence Project {admitted Pro Hac Vice)', urges this ' Ms. Jennifer Brown is one of the attomeys of record for Mr. Schweitzer's pending Rule 40 petition (Cast No. 3PR17-1-000002) before Judge Greg K. Nakamura. Ms. Friedman and Mr. Scheck were admitted pro hac vice in May 2019 on Mr. Schweitzer's Rule 40 Petition and Mr, Schweitzer will be moving to ‘consolidate Case Nos. 3PR17-1-000002 and 3$PO7-1-000007 because they relate to the same matter.Honorable Court to issue an Order denying the Motions to Unseal records filed by Judges for Justice in the above-referenced case on August 28, 2019 (hereafter “ Motions”), We submit our opposition (0 the Motions pursuant to Rule 7.2(c) of the Rules of the Circuit Courts of the State of Hawai'i and Rule 7(b) of the Hawai'i Rules of Civil Procedure. This Memorandum is supported by the attached Declaration of Counsel, Exhibits “A™"Y", and the records and files in this case as well as the pending Rule 40 pet ion before Judge Greg K. Nakamura, 3PR17-1-000002 and the originating criminal case, 3PC99-0000147. We urge this Court to deny these Motions and that the documents requested by Judges for Justice remain sealed, Furthermore, these Motions, submitted by Michael Heavey and Judges for Justice, were filed despite the fact that this Court has previously denied Mr. Heavey's and Judges for Justi 's request to unseal these records on June 28, 2019. See Mr, Heavey’s Exhibit “1”, Since the Court has already ruled on this issue, and Mr. Heavey and Judges for Justice ignored this Court's decision by fiting these Motions, we request, in the event that these Motions are denied, that Mr. Schweitzer’s counsel be awarded the reasonable value of their attomeys’ fees and costs associated with preparing for and responding to these frivolous Motions filed by Heavey and Judges for Justice, Ml. BRIEF FACTUAL BACKGROUND ‘The Hawai'i Innocence Project (“HIP”) is @ legal aon-profit organization and law clinic at the University of Hawai'i's William S, Richardson School of Law, representing. persons who have been wrongfully convicted in the State of Hawai'i, HIP, with the assistance of the Innocence Praject ("IP") based in New York, currently represents Mr, Schweitzer in seeking post-conviction relief. HIP has filed a Rule 40 petition in casenumber 3PR17-1-000002, based on actual innocence and ineffective assistance of counsel in Mr. Schweitzer’s highly publicized case. Mr. Schweitzer's case was tried in the Third Circuit Court in Hilo, Hawai'i in 2000 (case number 3PC99-0000147), The documents referenced in the Judges for Justice Motions, were filed and sealed by agreement between HIP and Hawaii County Deputy Prosecutor Charlene Iboshi. These sealed agreements were part of HIPs carly efforts to gain evidence of Mr. Schweitzer’s innocence in support of our pending Rule 40 petition. Currently, HIP and IP attorneys have entered into a re-investigation agreement with Hawaii County Prosecutors Mitch Roth and Ricky Roy Damerville in this matter, to find the individual who has yet to be identified, but whose DNA has been found on critical crime scene evidence. Beginning in 2014, retired Washington Superior Court Judge Michael Heavey. as part of his organization Judges for Justice, became involved in our re-investigation of Mr. Schweitzer's case. In 2013, Mr. Heavey visited the William S. Richardson law school to present on the Amanda Knox case and in a subsequent visit in 2014, was told about Mr. Schweitzer’s case. Initially HIP believed that Mr. Heavey might be able to provide some advice about post-conviction re-investigation. However, it soon became clear that Mr. Heavey wanted to play a much more significant role in Mr. Schweitzer’s case, even though to our knowledge neither Mr. Heavey nor anyone else in his organization Judges for Justice, are licensed or otherwise authorized to practice law in the state of Hawai Mr. Schweitzer’s HIP legal team soon realized that Mr, Heavey's knowledge of the case ‘was ill-informed, his theories were notin Tine with those of our legal team, and his tactics of gaining immediate media attention were too premature and likely to be harmful to Mr.Schweitzer, See Exhibie “A”, Cease and Desist letters dated November 13, 2014 and November 19, 2014. Most troubling was that Mr. Heavey began ¢o meet with and/or attempt to gain information from several of our key potential witnesses, lab experts, our client, and our client’s family. Despite our repeated requests since 2014 by and on behalf of Mr. Schweitzer, his family, his attomeys, and the current prosecutors handling this case, that Mr. Heavey not be involved in Mr. Schweitzer's case, Mr. Heavey and Judges for Justice have continued to interfere with our investigative efforts and our attomey-ctient relationship with Mr. Schweitzer. See Exhibit “B”, Cease and Desist Letter from HIP and IP, dated June 11, 2018, and the declaration of undersigned counsel, attached hereto. To Mr. Schweitzer and his current attomeys’ dismay, Mr, Heavey has met with or otherwise contacted our client's former attomeys, current prosecutors, witnesses, co- defendants, and others directly associated with Mr. Schweitzer’s pending case. See Exhibit “C", Mr. Heavey's Email to Susan Friedman, which we believe was dated June 14, 2018 and its related correspondence. Specifically, Mr. Heavey, who is not formally affiliated with Mr. Schweitzer’s case in any way, has continuously sought to publicize Mr. Schweitzer’s case in the electronic media, newspapers, through mass emails, and his “documentary” videos, even though he has been cautioned by Mr. Schweitzer’s attomeys that doing so could jeopardize our current re-investigation and could harm our client and potential witnesses, See Exhibit “D”, Email to Mr, Heavey dated March 30, 2018 and other media releases that are also part of Exhibit "D", attached hereto. Mr. Heavey knows of the very real danger that publicizing Mr, Schweitzer’s controversial case may bring, but he continues to ignore these concems raised by Mr,Schweitzer and his legal counsel, See Exhibit “E”, Judges for Justice mass email dated June I, 2018 and its related newspaper clippings, attached hereto. Indeed, the first time Mr. Heavey went to the press without our knowledge or approval and notified the press that we were re-investigating Mr. Schweitzer’s case, a key witness (and the Co- Defendant in Mr. Schweitzer’s case) Frank Pauline was killed the next day in a prison in New Mexico. See Exhibit “F", Hawai'i News Now Article dated April 28, 2015. Though we do not know with certainty that the two events are related or just a remarkable coincidence, it is precisely a compelling reason why HIP attomeys do not want Mr. Schweitzer's case publicized in the media by Mr. Heavey, Judges for Justice, or anyone else. The Motions filed by Mr. Heavey and Judges for Justice provide another example of Mr. Heavey’s recklessness with regard to any sensitive and confidential information that he receives. For instance, in section IA(g) of his Motion, Mr. Heavey publicizes the name and information related to a potential witness in Mr. Schweitzer’s case, despite the fact that this witness asked Mr. Heavey not to publicize het name, face, and information. See Exhibit “G", a still image of Judges for Justice Video “Who Killed Dana Ireland?” Mr, Heavey has also used information obtained in Mr. Schweitzer’s case to solicit funds and yain public recognition for himself and his organization Judges for Justice, not to educate the public as he claims. See Exhibit “H”, Email from Donna Leong dated April 24, 2018 and Judges for Justice website homepage. These Motions, filed by Mr. Heavey and Judges for Justice, ure an example of Mr. Heavey unleashing what he has called his “nuclear option” and his most recent attempt to gain confidential and unauthorized ‘material that he fas indicated and we believe he will then incorporate into another one of his factually inaccurate and controversial “documentaries”. See Exhibit “I” at page 3,Letter to Brook Hart dated December 24, 2018. Mr. Heavey’s and Judges tor Justice’s continued interference greatly impairs our ability to effectively represent Mr. Schweitzer, and our ongoing and collective efforts with the Hawai'i County Prosecutors to re- investigate his case, Mr. Heavey and Judges for Ju € continue to interfere despite the Washington State Bar Association Disciplinary Counsel's advice cautioning Mr. Heavey against his interference in Mr. Schweitzer’s pending case, as well as this Court's notification on June 28, 2019, that it will not unseal the records requested. See Exhibit “J", (1) Washington State Bar Association Disciplinary Counsel's waming dated May 10, 2019 and (2) Washington State Bar Association's Disciplinary Board Review Committee Order dated January 29, 2016; see also Mr. Heavey’s Exhibit “1”, Irrespective of Mr. Heavey’s need for public attention, the issue before this Court does not depend on what Mr. Heavey's motive is for seeking the seated records, but rather presents a question of whether he or his organization have the right to have the documents unsealed based oa refevant federal and state law. Mr. Heavey and Judges for Justice do not have an unfettered right to access, these sealed documents, HL LEGAL ARGUMENT Mr. Heavey and Judges for Justice rely in large part on the cases of Grube and Ahn as justification for their request for access. Grube v. Trader, 142 Hawaii 412 (2018); Oahy Publications Inc. v, Ahn, 133 Hawaii 482 (2014). Judges for Justice's reliance on Grube and Ahn is misplaced and fails for two reasons: (1) the documents under seal are part of ar ongoing criminal re-investigation, and (2) neither Grube nor Ahn are retroactive, see Ahn, 133 Hawai'i at 482 (“we [the Court} adopt procedures fo guide ourcourts in the future when making a determination whether to close court proceedings or to deny public access to the transcript of the closed proceeding”). Thus, Judges for Iustice’s claim that these documents should now be unsealed because of lack of compliance with the procedural tests outlined ip Grube and dm, is without merit, See id. see also Judges for Justice Motions pp. 13-15. ‘The Supreme Court of the United States has held that in “cases dealing with a claim of a First Amendment right of access to criminal proceedings” there are two considerations: (1) “whether the place and process have historically been open to the press and general publ c” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986), Moreover, the Court has made clear that when “the particular proceeding in question passes these tests ,.. a qualified First Amendment right to public access attaches. But even when a right to access attaches, it is not absolute.” Jd. at 9 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 at 606 (1982) (emphasis added). Courts have frequently had to answer the question that is currently before this Court and have found against a public right to access where there is an ongoing criminal proceeding. In Times Mirror Co, v. United States, 873 F.2d 1210, 1212-18 (9th Cir. 1989), the Court of Appeals denied acct 8 to search warrants and supporting affidavits sought before the State brought a criminal indictment and held that “the First Amendment does not establish a qualified right to access search warrant proceedings and materials while a pre-indictment investigation is still ongoing” d. at 1216, The Court acknowledged that there are benefits to public scrutiny in criminal cases, “[hJowever,complete openness would undermine important values that are served by keeping some proceedings closed to the public. Openness may, .. . , frustrate cri 1a] investigations, and thereby jeopardize the integrity of the search for truth that is so critical to the fair administration of justice.” Id. at 1213, See also Crowe v. Cty. of San Diego, 210 F. Supp. 2d (189, 1197-98 (S.D. Cal. 2002) (“{T]he Court finds that there is no qualified right of access to the transcripts, which contain sensitive information regarding the progress of a ctiminal investigation, However, even if there were a right of access, it is qualified, and can be overcome by a compelling interest .... [:] preserving the integrity of a ctiminal investigation and prosecution, protecting [defendant's Sixth Amendment right to a fair trial would overcome any qualified right of access to the transcripts.”) ‘The Supreme Court of Hawai’ has likewise acknowledged that while there is a qualified right of public access to court proceedings, “{t}here will be situations, however, where this right of the public to know must yield to the overriding requirements of due process”, Oahu Publications Inc. v. Ahn, 133 Hawai'i 482 (2014) (citing Gannett Pacific Corp. », Richardson, 59 Hawai’i 224 (1978)). The Supreme Court of Hawai'i has stated that the “access protected by the First Amendment and article 1, section 4 of the Hawai'i constitution can only be overcome by findings that ‘the closure is essential to preserve higher values’ and that the closure is ‘narrowly tailored” to serve that interest.” Grube v. Trader, 142 Hawai'i 412 at 424 (2018) (citing Ahn, 133 Hawai’ at 498). ‘The test to determine whether a record in a criminal proceeding can be sealed is “(1) [the] closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are noalternatives to closure that would adequately protect the compelling interest." Grube, 142 Hawai'i 424, 420 P.3d 354 (quoting Ahn, 133 Hawai'i at 497-98, 331 P.3d at 475-76). Mr. Schw cer satisfies this test. Mr. Schweitzer was convicted of murder, Kidnapping, and sexue! assault in 2000 and he has steadfastly maintained his innocence since he was arrested through the present day. Generally, there is an assumption that “governmental processes operate best under public scrutiny, however it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly.” Press-Enterprise Co, Il, 478 US. at 9 (giving the “classic example” of grand jury proceedings as an instance where openness is not beneficial), In Mr. Schweitzer's case his abitity to prove his longstanding claim of innocence is a compelling interest that would be substantially harmed by disclosure of documents regarding the testing of evidence that are filed under seal as part of the re- investigation of his case. As noted above, Mr. Schweitzer’s jegal team and the Prosecutor's Office are working cooperatively to re-investigate his case, which includes performing a substantial amount of DNA testing ¢o identity the source of the DNA found ‘on highly probative crime scene evidence. The integrity of this re-investigation is frustrated (and potentially threatened) by Judges for Justi 's continuing interference by publicizing details of the case, the re-investigation, and the DNA results. If history is any indicator, one can predict a high jikelihood that the documents under seal, if disclosed. will appear on Judges for Justice's website and will be widely published. Criminal investigations and the truth secking process are almost always more successful where the parties can investigate outside of public view, and this is especially tre in the post- conviction stage, where investigations can be more complicated and difficult due to theage of the case, Mr. Schweitzer's right to prove his innocence is certainly more compelling than Judges for Justice’s interest in publicizing documents on its website, ‘The documents and files in this case which are sealed are relevant to our active joint re-investigation with the Prosecution, (P, and HIP. The necessity to maintain the sealing of the records in question while the joint re-investigation continues is proven, in part, by the actions of Judges for Justice since 2014. Judges for Justice and Mr. Heavey were wamed by HIP’s attorneys, including Brook Hart, both in writing and in person, how leaking any of the content of the investigations could invite harm (0 suspects, as well as to our client and his co-defendants. The warnings did not stop Judges for Justice's efforts to publicize our investigation of Mr. Schweitzer’s case, as Mr. Heavey contacted the Hawai'i Tribune to discuss the DNA testing and to announce to the world that the case was being reinvestigated. The very nevt day after the story was published ia the Hawai'i Tribune, Frank Paufine, a co-defendant, was murdered in a New Mexico Prison. See Exhibit “F”. It is possible that it is pure coincidence that Mr. Pauline stayed alive in prison for well over a decade, yet was killed in prison the day after Mr. Heavey ignored HIP's requests and went to the press about our re-investigation. However, given the sensitive nature of the re-investigation and the events that have already occurred, it is clear that the details of the re-investigation and DNA testing should remain under seal. IV, CONCLUSION For the reasons set forth in this Memorandum and the supporting Declaration of Counsel, Exhit ts “A"-"I", and the relevant records and fifes of this matter, we respectfully urge that the Motions filed by Judges for Justice on August 28, 2019 be denied and the Stipulations filed in this matter on February 26, 2007 and February 9,2009 remain sealed. Additionally, we request that the reasonable value of attomeys’ fees and actual costs expended in response to this Motion be awarded to Mr. Schweitzer’s counsel Mr. Heavey and Judges for Justice were notified on June 28, 2619 by this Court that they were not entitled to the records they are seeking, Instead of respecting this Court’s decision, Mr. Heavey and Judges for Justice filed a lengthy 20-page pleading urging the Court to unseal the records. This incursion has required Mr. Schweitzer’s legal tea to reallocate much seeded time and effort ia ce-investigating aspects of Mr. Schweitzer’s case to respond to these Motions, Mr, Heavey and Judges for Justice should certainly be held accountable in the form of payment for the reasonable value of Mr Schweitzer’s legal fees and actual out-of;pocket costs for filing these frivolous Motions. Dated: Honolulu, Hawai'i, October 9, 2019. BROOK teats: Attorney for Petitioner ALBERT TAN SCHWEITZER