allowed to stand
Murder by omission -- failureBy Rod Thompson
to provide aid -- is only
a petty misdemeanor
Big Island correspondent
HILO -- By failing to call police or medics after attacking Big Island newcomer Dana Ireland, two brothers exposed themselves to a charge of "murder by omission," Judge Riki May Amano ruled yesterday.
Amano permitted the omission portion of the second-degree murder charge against the two to stand even though the law being used classifies Ian and Shawn Schweitzer's alleged failure to provide aid as a petty misdemeanor -- hardly more than a traffic offense.
Amano said she didn't understand the prosecution's thinking and believes the charge could lead to an appeal after a trial is held.
But she approved the charge anyway.
There was no question during yesterday's hearing about the other portion of the murder charge filed in May, which alleges the brothers killed Ireland in 1991 by committing certain acts such as hitting her with a car.
Shawn's attorney, Keith Shigetomi, argued against bootstrapping the petty misdemeanor law into a murder charge.
He suggested a hypothetical situation in which 10 people see a fatal accident and one person calls police. He asked if the other nine people should be charged with murder for failing to call.
Amano already had thrown out the murder by omission charge once in January 1998, in a previous indictment.
Ira Leitel, Shawn's attorney at the time, successfully argued that requiring a person to report injuries he committed during a crime would be a violation of the right against self-incrimination.
Since then, all charges against Shawn and Ian were dropped, and a new set was filed, including a new and differently worded murder by omission charge.
Even after approving the charge, Amano commented, "I can't understand why the state is doing it."
The answer may lie in the strength or weakness of the prosecution case against Shawn. The evidence is expected to be that Ian was the primary attacker. There may be difficulty in showing Shawn actively joined the attack.
A murder by omission charge could let him be convicted for going along with it and not alerting authorities.
In related actions, Amano turned down several motions to dismiss all other charges against the brothers, and motions to move their trial off the Big Island.
Ian is scheduled to be tried Nov. 15, and Shawn is set for March 6.
Amano said it is too soon to rule on whether police or others can describe the confessions of the Schweitzers' fellow suspect, Frank Pauline Jr., since it is not known yet whether Pauline will testify.
Pauline was sentenced Thursday to three life terms for the murder, kidnapping and rape of Ireland.
Dana Ireland Archive