The state is appealing a Hawaii County circuit judge’s dismissal of the June 2022 indictment against Steven Ray Simpson in the 1978 slaying of 26-year-old Valerie Ann Warshay, a California visitor, in Kalapana.

Deputy Prosecutor Anna­liese Wolf on Nov. 20 filed with the Intermediate Court of Appeals the appeal of Judge Peter Kubota’s Oct. 24 order granting Simpson’s motion to dismiss the indictment.

“Judge Kubota did not make the right call,” Wolf, who heads the Hawaii County Prosecutor’s Office’s cold case unit, told the Honolulu Star-Advertiser.

Kubota, in his findings of fact, conclusions of law and order, said the state presented incompetent and inadmissible evidence to the grand jury. He sided with the defense, which questioned chain of custody of a blue tarp on which Simpson’s fingerprint was found and on which Warshay’s body was “purportedly” found.

He ruled evidence by the FBI’s 2020 findings was also inadmissible because there was no foundation the tarp was from the crime scene.

The judge also took issue with the DNA evidence presented to the grand jury that Simpson was the major contributor of the sperm from pubic combings taken from Warshay. Another man was a minor contributor.

Kubota found there was no evidence presented to the grand jury that the “purported pubic combings … actually came from Warshay.”

The state objected to the judge’s findings and order, saying, “The Court has erred in its ruling. It is the Grand Jury who is the trier of fact in considering the proposed indictment, and it is the trier of fact who accords the weight of the evidence presented.”

The state also said the court abused its discretion because the competency of the evidence before the grand jury does not apply to physical evidence.

Also, a more elaborate foundation is needed for easily substituted evidence such as drugs or money, but the fingerprint and the DNA are unique.

The only way the defendant could have attacked competent evidence was if the state had engaged in misconduct, the state said.

The court determines whether there is enough legal and competent evidence presented to the grand jury to establish probable cause the suspect violated the law.

Also, evidence supporting an indictment may be less than evidence required for a conviction, and a trial standard would be more exacting than a probable-cause standard, the state said.

Simpson, 73, who has been serving a life sentence for the Dec. 11, 1978, strangulation death of Mary Catherine Drapp in Puna, was scheduled in July for a parole hearing shortly after Kubota’s oral dismissal of the indictment in the Warshay murder.

Wolf appeared before the parole board and notified the members she would file an appeal in the Warshay murder case.

Warshay, whose body was found April 23, 1978, at Harry K. Brown Park in Kalapana, was killed in a similar fashion just eight months before Drapp. The medical examiner ruled the cause of Warshay’s death was strangulation — like Drapp. Warshay also died of trauma to the head.

In January 1979, Simpson, then 28, was a fugitive living on Hawaii island, wanted by authorities from his home state of Washington for a parole violation. The Hawaii Tribune-Herald reported he was arrested and readied for extradition before he was found guilty Dec. 4, 1979, of Drapp’s murder.

Had the parole board decided to parole Simpson in July, he could have been released from prison due to Kubota’s dismissal of the Warshay indictment.

He remains in custody at the Halawa Correctional Facility.

The original judge assigned to the case, Judge Henry Nakamoto, curiously disqualified himself, filing a two-paragraph certificate of disqualification, simply quoting state law that “a Judge should disqualify himself or herself in a proceeding in which the Judge’s impartiality might reasonably be questioned.” He gave no further explanation or reason.

The state filed a motion for clarification of his disqualification, but that was denied Sept. 19 and the following day Kubota stepped in and heard Simpson’s motion to dismiss the indictment.

Kubota ordered the case dismissed without prejudice, meaning charges could be refiled.

Court records show another unusual occurrence surrounding the motion to dismiss the indictment. Keith Shigetomi, who had represented Simpson as a deputy public defender, left the office in May and returned to private practice.

However, he was allowed to represent Simpson on June 28 on the motion to dismiss the indictment, saying he was given permission to make a “special appearance” on behalf of the Office of the Public Defender.

On July 12 he filed with the court an entry of special appearance of counsel after the fact.