Hawaii passed a law to pay the wrongfully convicted. No one has been paid

After insisting for nearly two decades that he was innocent of a sexual assault at knifepoint on Maui, Alvin Jardine got a judge to let him try to prove it. His lawyers sent a green and white checkered tablecloth found at the crime scene to a lab to test it for DNA.

When police had investigated the crime in 1990, DNA testing of bloodstains and other bodily fluids on the tablecloth was inconclusive. But by 2008, technology had advanced, and the new analysis showed that the DNA wasn’t Jardine’s.

Jardine’s conviction was vacated and he was freed about three years later. But a state law that came along in 2016 to compensate those wrongfully convicted with up to $50,000 for every year they spent behind bars hasn’t panned out for him — or anyone else — because it requires him to prove he is “actually innocent.”

Defense attorneys and even state supreme court justices have said that standard is nearly impossible to meet.

“We don’t have any case law that talks about actual innocence,” said William Harrison, who represents a man who has been seeking compensation for four years since his sexual assault convictions were vacated. “When you go to trial, it’s either you’re guilty or not guilty.”

In cases involving all five people who have sought money in Hawaiʻi, the Attorney General’s Office has argued that none of them have shown that they’re innocent. All of the cases are pending, including two that have gone to the Supreme Court.

Thirty-eight states have similar laws, and most require that people prove their innocence in some way, said Jeffrey Gutman, a professor of clinical law at George Washington University who works with the National Registry of Exonerations. But he characterized Hawaiʻi’s law as more stringent than many states.

And this is the only state that has paid nothing to claimants, according to the registry. Two other states haven’t made any payments, either, but no one has filed a claim there.

State Sen. Karl Rhoads, who was one of the sponsors of the compensation bill, has introduced another bill this session to make it easier for those who’ve been wrongfully imprisoned to get compensation.

“You’ve got to treat these people with some mercy,” Rhodes said.

How To Prove You’re ‘Actually Innocent’

Jardine was one of the people lawmakers were trying to help when they first considered the compensation legislation in 2015.

Supporters of the bill, including the Hawaiʻi Innocence Project — which handled Jardine’s exoneration case — testified about the hardship he had endured. During the 20 years he was locked up, Jardine missed seeing his daughter, who was just four months old when he was imprisoned, grow up. He was released into a changed world with no money or support to help him adjust.

“I am sure that being released was a huge relief; however, how does he get his life restarted with no money and no resources?” the Community Alliance on Prisons said in written testimony in 2015. “Mr. Jardine may not be in prison, but he is still, in essence, incarcerated.”

The counterargument was that the money should go only to people who were innocent. The Attorney General’s Office argued against the bill, which at one point said claimants must have had their convictions overturned on “grounds consistent with innocence.” Although other states use similar language, the Hawaiʻi AG argued it could allow people to seek money if their convictions were overturned because of a flaw in the prosecution — not because they were innocent.

Instead, the AG suggested in written testimony, lawmakers should “require that claimants prove by clear and convincing evidence that they are actually ‘innocent’ of the crime for which they were convicted and imprisoned, and to clearly define what ‘innocent’ means.”

The language was subsequently changed to say that claimants would have to show that they were “ actually innocent” of the crime for which they were convicted — a new standard never defined in the law and one that no one so far has met.

That’s because even if a judge decides to overturn someone’s conviction based on new evidence, they don’t declare the defendant innocent. Instead, a judge decides whether new evidence is likely to spur a different verdict.

“Actual innocence is just not something a criminal court thinks about when it reverses or vacates a conviction,” the state Supreme Court wrote when it later weighed in on the law.

Eligible For Millions In Compensation

At $50,000 a year, Jardine could be owed nearly $1 million for the time he spent in prison. Nine years after the law was enacted, he hasn’t gotten anything.

A Maui Circuit Court judge had vacated Jardine’s convictions and ordered a new trial, writing that the results of the second DNA test would likely cause a jury to reach a different verdict. Rather than try the case again, prosecutors had dropped the charges.

But when Jardine filed his claim in 2016, the Attorney General’s Office argued that he didn’t meet the requirements of the law because the order that led to his release didn’t explicitly state that he was “actually innocent.” The AG also argued that although the DNA test ruled Jardine out as the source of the fluids on the tablecloth, it didn’t rule him out as the perpetrator because the sexual assault had taken place elsewhere in the house. The judge ruled against him.

Jardine’s lawyers appealed to the state Supreme Court in 2023, which concluded that a judge’s order need not have those “magic words.” They wrote that lawmakers meant to compensate people who, based on the facts, didn’t commit the crime for which they were convicted. But the justices agreed with the circuit judge that there was a genuine disagreement about what the DNA test meant for Jardine’s case.

Under the law, they ruled, Jardine must go through another trial — not a criminal trial to determine whether he is guilty of a crime, but a civil trial to determine whether he is innocent and if so, what the state owes him.

None of the five claimants’ cases have gotten to that point, largely because of disputes over what the law requires and confusion over how their petitions should be handled. The Attorney General’s Office declined to comment on the cases.

Among the petitioners who have failed to satisfy the law’s requirements are Albert Ian and Shawn Schweitzer, brothers who were convicted of the 1991 sexual assault and murder of Dana Ireland on the Big Island.

Their convictions were vacated in 2023 after analysis of DNA collected from Ireland’s body and a bloody T-shirt excluded them as the source. Last year, another man, Albert Lauro, was identified as the source of the DNA, but he killed himself after being questioned by police.

The Schweitzers’ convictions were vacated and Albert Ian Schweitzer was released after 25 years in prison.

In 2023, the Schweitzers filed petitions seeking money from the state. Under the law, Albert Ian Schweitzer could be eligible for about $1.25 million because of how long he was imprisoned; his brother Shawn, who served only two years behind bars, could be eligible for about $100,000.

But as in the Jardine case, the attorney general has argued that the orders vacating their convictions didn’t say they were innocent. Moreover, Hawaiʻi County prosecutors have contended in a supporting filing that even though DNA evidence points to Lauro, that doesn’t mean the Schweitzers weren’t somehow involved in the crime. Prosecutors haven’t cited any evidence to support that, however.

Keith Shigetomi, who represents the Schweitzers, called the suggestion that the brothers were involved in the crime despite the lack of physical evidence “absolutely preposterous.”

The Supreme Court ruled that the Schweitzers didn’t need to be declared “actually innocent” in order to move forward with their claim. But, like Jardine, they must file a civil lawsuit to prove they’re innocent.

They’ve done that, and a status conference is scheduled this month to set a trial date.

Bill Aims To Provide Money Earlier

Rhoads said he hopes the attention the Schweitzers’ case has gotten will push lawmakers to address the flaw in the statute.

“It’s so obvious that they didn’t do it,” he said. “They spent years in prison for something they didn’t do, so we owe them something.”

His proposed legislation, Senate Bill 169, removes the requirement that people show that they are “actually innocent.” Instead, it says people are eligible for compensation if a judge has issued an order that includes “a finding that supports the conclusion that the person did not commit the crime.” And it says that the law should be interpreted liberally.

His bill also would require the state to pay people $5,000 a month while their petition is pending. Those advance payments would be deducted from the final award.

The bill has been referred to the Ways and Means Committee and the Judiciary Committee, which Rhoads chairs.

It’s not clear whether the bill will face opposition. The Maui County and Honolulu prosecutor’s offices said they have not taken a position on it. The Attorney General’s Office said it can’t comment on pending bills. The Hawaiʻi and Kauaʻi County prosecutor’s offices did not respond to requests for comment.

Gutman said he’s familiar with the concern that led to the stringent language in the first place; that’s why most states require people to demonstrate their innocence in some way.

“I think state legislatures are very worried about lots and lots of people coming out of the woodwork,” he said, “and saying, ‘Hey, my conviction was overturned, so I should get paid.’”

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.