A convicted killer who says he’s innocent is hinging his latest shot at redemption on the assertion that Maui police and prosecutors knowingly withheld or destroyed evidence that would have implicated another man.

Taryn Christian is currently serving a life sentence with a minimum 40-year term for the July 14, 1995 stabbing death of Vilmar Cabaccang.

Even before he was convicted in 1997, Christian said police arrested the wrong guy. He’s now offered reams of evidence that he believes will prove his innocence, including a key eyewitness who has since recanted his initial identification of Christian as the murderer and a 911 tape in which Cabaccang identifies the real culprit with his dying breaths.

But much of the crucial evidence, including a pair of bloody shorts that Christian wanted for DNA testing, has gone missing under suspicious circumstances.

Taryn Christian, left, says he’s innocent of the murder of Vilmar Cabaccang. He blames James Burkhart, right, for the killing. The composite sketch was created based on witness descriptions.

Christian’s attorneys say they’ve found proof that chain of custody logs have been forged. Other important documents, such as original investigative reports in which witnesses identify other suspects, have disappeared as well.

Questions are being raised about whether Maui officials fudged parts of the investigation, failing to follow-up on leads and ignoring normal evidentiary procedure.

U.S. District Court Judge David Ezra, who is presiding over the case, has even described some of these efforts as “sloppy,” and noted during a recent hearing that he had “serious concerns” about how certain evidence was handled.

But Ezra has little leeway when it comes to freeing Christian or even giving him a new trial. Previous rulings by Ezra and U.S. District Court Judge Leslie Kobayashi that found Christian didn’t receive a fair criminal trial have been overturned by the 9th U.S. Circuit Court of Appeals. The U.S. Supreme Court has declined to weigh in.

“For all intents and purposes this could very well be his last avenue of getting his freedom. If the judgment was entered and there was a fraud perpetrated on the court you can attack that judgment and get it set aside.” — Kenneth Lawson, Hawaii Innocence Project

Christian’s only hope now is to prove that the 9th Circuit’s decision was based on fraud perpetrated by Maui police and prosecutors, which even Ezra has said is an extraordinarily high threshold to meet.

During a March hearing, Ezra told Christian’s attorney, Gary Modafferi, that he would need to present concrete evidence to prove that officials had intentionally tried to hide or dispose of evidence. Coincidence and inference just won’t cut it.

An example Ezra gave would be if a whistleblower from within the Maui County Prosecutor’s Office came forward to testify about seeing someone taking blood-stained shorts from an evidence locker and throwing them away after the court asked for the evidence to be produced.

“That’s more than a smoking gun,” Ezra told Modafferi. “That’s the gun, the bullet and the holster.”

Maui County attorneys, however, have said they’ve done nothing wrong and that they put the right guy behind bars.

Moana Lutey, deputy corporation counsel for Maui, says there’s no conspiracy to keep Christian locked up. Sometimes evidence is destroyed or just doesn’t exist, she said, and if officials can’t produce it then there’s little more that can be done.

“They don’t have any evidence of fraud,” Lutey said. “There’s really no motive. I don’t know why any of the prosecutors would have felt the need to commit fraud on the court.”

The Hawaii Innocence Project is now working with Modafferi on the case. The last-ditch effort relies on a federal rule that says Christian can have previous decisions voided if he can prove that the judges were duped by relying on false information.

Kenneth Lawson teaches criminal law at the University of Hawaii at Manoa and is the co-director of the Innocence Project, which has a mission to overturn wrongful convictions for those who have been imprisoned for serious crimes.

Lawson said he’s reviewed Christian’s case and says there are enough irregularities to mount a successful campaign under the fraud rule. What makes it so compelling, he said, is that much of the evidence that would implicate another killer has vanished.

“For all intents and purposes this could very well be his last avenue of getting his freedom,” Lawson said. “If the judgment was entered and there was a fraud perpetrated on the court you can attack that judgment and get it set aside.”

‘He Wants to Kill Me’

Cabaccang died in the early morning hours of July 14, 1995 outside the Haleakala Gardens Apartments in Kihei on Maui. He was stabbed to death by someone wielding a double-bladed knife.

Police and prosecutors said that Christian, who was 19 at the time, killed Cabaccang, 23, after breaking into his custom Honda Civic to steal stereo equipment.

The confrontation started when Cabaccang and his girlfriend, Serena Seidel, were rousted from bed in the middle of the night by a noise coming from the street. Seidel saw someone sitting in Cabaccang’s vehicle. When she and her boyfriend tried to confront the man, a foot chase ensued.

Seidel stopped briefly at her friend Tesha Santana’s house to get help while Cabaccang continued his foot pursuit. By the time Seidel caught up to Cabaccang he was in the middle of a struggle with the man from the vehicle.

“Babe, the guy has a knife,” Cabaccang told her. “He wants to kill me.”

Seidel punched the assailant in the head and he bit her on the wrist. That’s when Seidel noticed large amounts of blood all around them. The attacker dropped a knife and walked away, telling Seidel he was going to call 911. Seidel noticed he was wearing plastic gloves.

A nearby resident, Phillip Schmidt, heard the screams and came out to investigate. He saw the suspect leaving the scene as he moved in to help Cabaccang. Schmidt would later testify that it was Cabaccang who was holding a steak knife.

Seidel and Schmidt both eventually identified Christian as the culprit. Christian’s girlfriend, Lisa Kimmey, also told authorities that he confessed the murder to her three days afterward. Christian was arrested by Maui police on Sept. 17, 1995.

But Christian always denied responsibility for the killing, pleading not guilty to all charges. Instead, he blamed a third man, James “Hina” Burkhart, for Cabaccang’s death.

Christian acknowledges he was involved in the scuffle and that’s how his hat and shirt came to be covered in blood. But, he says, he wasn’t the one who stabbed Cabaccang.

Burkhart could not be reached for comment despite attempts to locate him including through a former defense attorney.

Burkhart, who court records show has a long criminal history, was the original suspect in Cabaccang’s murder. He was supposed to be at Tesha Santana’s house the night of the stabbing. A composite sketch of a man with long, dark hair that was published in a Maui newspaper also appears to resemble Burkhart more than it did Christian, who had short hair.

Christian alleged Burkhart and Seidel were in a relationship and that he had confessed the murder to at least two people. Christian was never allowed to introduce those witnesses at trial, however, because the judge felt that they were unreliable. One was a former cellmate of Burkhart’s and the other was a friend who used to do drugs with him.

Burkhart never testified during the trial. He invoked his Fifth Amendment right against self-incrimination. Officials said he also had two alibi witnesses. His cousin, Harry Auweloa, and his live-in girlfriend, Helen Beatty, had told a Maui detective that Burkhart was sleeping at their place in Ulupalakua, which was nearly 30 miles from the murder scene.

This left Christian and his attorney with few options to convince the jury that he was innocent. Christian blurted out in the courtroom that he wanted to testify in his own defense. The judge denied it.

Much of the evidence, including blood-soaked clothes and eyewitness statements, all pointed at Christian as the killer. Recorded statements made between him and his girlfriend were “extremely incriminating.”

Even Christian’s attorney, Anthony Ranken, told jurors during closing arguments that he didn’t really know what happened the night Cabaccang died. Although Ranken tried to pin it on Burkhart, he also told the jurors they should consider that Christian might have killed Cabaccang in self defense.

“I’m going to explore with you what really happened that night, what’s proven, what’s not proven, what may have happened, reasonable possibility, the reasonable doubts,” Ranken said. “But I have to admit to you I don’t really know what happened. A lot of times the jury thinks that the lawyers know something they don’t know, but the truth is you’ve got all the information I’ve got now.”

Christian was convicted in March 1997 of second-degree murder, use of a deadly weapon during the commission of a crime and third-degree theft. He was sentenced to life with a minimum of 40 years.

Fighting for a Second Chance

Christian has spent the past 18 years pawing at his freedom. He’s argued that he should have been allowed to testify during the criminal trial as well as present the two witnesses who said Burkhart had confessed to them. He also said he received poor legal representation, and that Ranken should never have brought up the issue of self defense.

The Hawaii Supreme Court dismissed Christian’s claims, only overturning his conviction of using a deadly weapon during the commission of a crime. But the federal courts have been torn.

U.S. District Court — Hawaii

In 2004, Christian filed a writ of habeas corpus with the U.S. District Court of Hawaii, saying he was being wrongfully imprisoned for Cabaccang’s murder. Four years later then-Magistrate Judge Leslie Kobayashi agreed that jurors should have been allowed to hear that Burkhart confessed to Cabaccang’s murder.

Kobayashi’s ruling was backed up by U.S. District Court Judge David Ezra, who said Christian’s “due process rights were violated because he was unable to present a theory of defense.” Ezra ordered that Christian be released so that he could stand trial again.

Maui prosecutors, however, appealed that ruling to the 9th U.S. Circuit Court of Appeals, arguing that “there was no real corroboration that Burkhart committed the murder other than some remote and speculative evidence which lacked connection with Cabaccang’s murder.” Even if Christian’s attorneys could place Burkhart in Kihei, they didn’t have proof tying him to the crime.

Much of the evidence, including blood-soaked clothes and eyewitness statements, all pointed at Christian as the killer. Recorded statements made between him and his girlfriend were “extremely incriminating.” The DNA evidence that had been tested also didn’t implicate Burkhart.

In a 22-page ruling the appeals court overturned Ezra, finding that the Burkhart confession witnesses were rightfully withheld from trial because they were not considered credible. One witness was described as a jailhouse snitch. The other used to do drugs with Burkhart and said he might have been high when he confessed to her.

In addition, the court found that the testimony would have contradicted much of the other evidence in the case. There were also questions about whether the confessions were made in the first place “in light of the unreliability of the witnesses and the unrecorded form of the confessions.”

It was a devastating court decision for Christian and his attorneys. At the time, he was being represented by Honolulu attorney Keith Shigetomi and Mark Barrett, of Oklahoma.

Barrett had made a career on wrongful conviction cases, and was the subject of a John Grisham book, “The Innocent Man,” that told the story of a minor league baseball player who had been sentenced to death for the rape and murder of a 21-year-old cocktail waitress.

U.S. District Court — Hawaii

Even though the case was over, Shigetomi said recently that there were still too many unanswered questions about how Maui police and prosecutors handled the murder investigation and subsequent court hearings. Witness stories were starting to change and evidence that pointed to Burkhart always seemed to go missing. It started to smell like a cover-up.

“It’s not an everyday occurrence when a federal judge says that something was wrong and then all of a sudden on appeal it gets reversed,” Shigetomi said. “It was quite frustrating to think that after all these years you’re going to be able to have a fair day in court and then it’s taken away from you.”

Missing Evidence, Allegations of Corruption

Christian first filed his motion to reopen his case in April 2013, saying that the case had been “fatally infected” by prosecutorial misconduct that resulted in evidence being withheld that could have proven his innocence. Since then, there have been a number of crucial arguments made to convince the court that it erred in its decision-making.

Recently filed court records suggest that much of the current case hinges on the testimony of Phillip Schmidt, the eyewitness who testified that he saw Christian walking away from the murder scene. Schmidt now says he originally identified Burkhart in a photo lineup that he then signed with his initials.

But the photo lineup as well as any police reports discussing Schmidt’s identification have gone missing.

Modafferi described the erasure as a “forgery” that was an attempt to hide the fact that the prosecutors had possession of the shorts in violation of protocol. The destruction of the shorts, he said, was just one part of a “stunning mosaic of fraud and mishandled evidence.”

Similarly, there are questions about Burkhart’s alibi the night of the murder. Harry Auweloa, who initially told police that Burkhart was sleeping at his house when Cabaccang was stabbed, now says he has no way of knowing if his cousin was at the home that night.

Maui detectives never took a written or recorded statement from Auweloa or his girlfriend, Helen Beatty, when they interviewed them. Prosecutors also never followed-up on the alibi claims to verify what was said.

Other evidence that could potentially place Burkhart at the scene has also disappeared.

Annie Leong was a gas station attendant who saw a distraught man with a bloody hand come into her workplace minutes after Cabaccang was stabbed. Leong helped police develop a composite sketch of the suspect in the case that showed a man with long, stringy hair.

She later testified that police brought her two 4×6 photographs in which she purportedly identified the man who had come into her store. Those photographs have never been produced. Neither has a surveillance video that would have shown the man with the bloody hand inside the gas station.

But one of the most concerning pieces of evidence to go missing is Serena Seidel’s bloodied shorts that Christian wanted to test for Burkhart’s DNA.

from Nick Grube

The shorts disappeared after a judge ordered them to be produced for testing. Maui officials eventually said that they had been destroyed along with the chain of custody reports that would give an indication of who had them last.

An evidence log from the box containing the shorts appears to have been altered. According to a handwriting expert, the words “Returned to pros” had been erased from the log.

While prosecutors argued that this might have been an innocent mistake, Christian’s attorney, Gary Modafferi, argued otherwise. He said in recent court filings that it would be inappropriate for prosecutors to retain evidence for an ongoing case in their office, and that it would normally be left in the possession of the court clerks.

Modafferi described the erasure as a “forgery” that was an attempt to hide the fact that the prosecutors had possession of the shorts in violation of protocol. The destruction of the shorts, he said, was just one part of a “stunning mosaic of fraud and mishandled evidence.”

Documents detailing interviews and interrogations of Burkhart about the murder have never been provided to Christian’s legal team, Modafferi argued. This includes a debriefing with Burkhart conducted by Maui prosecutors and FBI agents in 2009.

Other unresolved wrinkles include the missing steak knife and an enhanced recording of the 911 call that was made from a mobile phone from the crime scene. At least two witnesses, including Schmidt, said Cabaccang had a steak knife in his possession the night he was killed, yet police never recovered the weapon.

An audio expert hired by Christian’s legal team also says Cabaccang can be heard saying “James Burkhart just walked off” in the background of the 911 recording from the night of his stabbing. Cabaccang’s cousin, Rudy Cabanting, verified this to Christian’s investigators in a written declaration, but died in a car crash before he could testify in court.

Experts from the prosecutor’s office, however, have said the tape is unintelligible. County attorneys have also dismissed many of the other claims, saying in court records that Christian’s arguments are based on “unfounded speculation and scurrilous allegations” that do little to prove that there was actually any fraud.

But Modafferi argues otherwise, saying in a recent court filing that taken as a whole there has been “pervasive and egregious corruption” that has caused “grave damage to the integrity of our judicial process.” The fact that Maui County agencies refused to provide certain evidence showed “flagrant disregard” for the court and its orders.

“The State’s prosecutors turned a blind eye to a thoroughly corrupt investigation and prosecution of Petitioner and transported that corruption into the jurisdiction of this Court, and then permitted pervasive dishonesty by its investigators, key witnesses and its audio expert on issues going to the core of Petitioner’s constitutional claims,” Modafferi said.

U.S. District Court Judge David Ezra is scheduled to hear final oral arguments in the case Dec. 1.