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Lawyer asks
new trial for
Ireland killer
It was unfair to let jurors
inspect the VW's trunk without
the judge and defendant Frank
Pauline present, his attorney saysBy Debra Barayuga
Star-BulletinAllowing jurors to conduct an experiment on the Volkswagen Beetle that the state contends struck Dana Ireland violated Frank Pauline Jr.'s right to a fair trial, his attorney said.
The issue was one of five that defense attorney Cliff Hunt raised during oral arguments before the Hawaii Supreme Court yesterday, appealing Pauline's conviction and prompting lengthy questioning by justices.
Pauline is asking the court to overturn his conviction for second-degree murder, kidnapping and first-degree sexual assault and grant him a new trial.
Pauline was one of three men involved in the highly publicized Big Island case in which the visiting Ireland, 23, was struck by a car in Puna, kidnapped, raped and left for dead in an isolated subdivision on Christmas Eve in 1991.
Both the prosecution and defense agreed to allow the jury to view the Volkswagen but didn't agree to the experiment, Hunt said.
Nor was the experiment conducted in the presence of Pauline, prosecutors or Hunt, or supervised by the court.
The viewing was conducted just before closing arguments and had a "profound effect on the jury's consideration of the evidence and closing arguments," Hunt said.
The state disagreed with Pauline's contention.
"Confessed murderer Frank Pauline was brought to trial and had a fair trial," said Charlene Iboshi, Hawaii deputy prosecuting attorney for Hawaii.
Justices Steven Levinson and Simeon Acoba questioned Iboshi at length on why Pauline, attorneys and the judge weren't present during the Volkswagen viewing, why Pauline wasn't asked to waive his presence and why the car was not introduced as evidence.
"Even if Mr. Hunt didn't object, wouldn't it be error not to receive in evidence what probably was the most essential part of the case?" Acoba asked, noting that all testimony concerning the car could be stricken if it hadn't been formally received by the court as evidence.
Although the car was not marked as evidence, the state and the defense agreed to the court's instruction that it be treated as any piece of evidence, Iboshi said.
The state contends that the viewing of the car was not part of the "fact-finding" phase of the trial and that Pauline's presence could have been waived by his attorney. While the state could have done things differently, those concerns don't rise to the level that would require a reversal of the verdict, Iboshi argued.
The evidence against Pauline, including confessions to his girlfriend, family and media and his T-shirt with Ireland's blood on it, was "overwhelming," she said. Hunt had waived Pauline's presence at the viewing, but yesterday admitted it was "bad judgment" on his part.
Although a law clerk stopped jurors from going ahead with the experiment, Big Island Judge Riki Amano later allowed police officers to open and close the Volkswagen's trunk hood so jurors could decide whether a young adult female could fit inside.
Two major issues at trial were whether the Volkswagen was the car that hit Ireland and whether she could fit inside the trunk, as Pauline admitted she did.
Pauline confessed to being with two others in a Volkswagen that struck Ireland as she rode her bike, and said they stuffed her in the trunk and took her to another area where she was raped and dumped. He later recanted.
The Volkswagen was pivotal to the defense because its position was that Pauline had made up the confession because he was trying to improve his situation and also was helping his brother get off on other unrelated charges, Hunt said.
Pauline was sentenced to a minimum term of 180 years in prison before he can seek parole.
Dana Ireland Archive