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Attorneys representing former Honolulu business owner Michael J. Miske Jr. and six co-defendants have added a new twist to the already convoluted court proceedings against their clients by filing a motion seeking to move the entire trial out of Hawaii to a location somewhere on the U.S. mainland. 

The motion seeking a change of venue, filed in Honolulu’s U.S. District Court on Monday, argues that because of the nature and extent of pretrial publicity about the case, “the jury pool will be so tainted by a sensationalized, discredited, and disavowed tale of fiction, that it will be impossible for the defendants to receive a fair and impartial trial.”

They suggest a site such as Las Vegas would be suitable because few Las Vegas residents have heard of Miske or the criminal charges against him.

The motion is based in large part on a survey of 153 Hawaii residents conducted by David Weinberg, founder of Juryscope, a Minnesota-based  jury consulting firm. The company website says it assists attorneys “in developing trial strategies; analyzing mock juror research results; assessing the impact of opening statements; preparing witnesses (fact and expert) for direct examination and cross examination; case-theme development; jury selection assistance; and assessing the impact of damage presentations and defenses.”

Weinberg and Juryscope advised defense attorneys during jury selection in the sexual assault , and several other high profile cases. In a declaration attached to the motion for change of venue, Weinberg said he has been involved in jury selection in 15 prior Hawaii cases, including assisting the court in designing procedures for selecting an unbiased jury in the criminal case against Katherine and Louis Kealoha. 

Weinberg and Juryscope were retained by Cynthia Kagiwada, the court-appointed attorney representing Preston Kimoto, a former employee and, later, business partner of Mike Miske, to prepare and analyze a survey of both Hawaii and Las Vegas residents to identify possible bias towards Miske and other defendants due to pretrial publicity.

When asked whether they had heard of the Miske case, two-thirds of Hawaii residents surveyed said they had, and 84% of all Hawaii respondents said they believe Miske is guilty, while only 16% said they are undecided.

The consultant also surveyed 121 people in Las Vegas and, when asked directly about the Miske case, 6.6% reported having heard of it. But 100% of those people believe Miske is guilty, according to the report in the court record.

“Based on my years of experience in selecting juries, analyzing data for juror bias, as well as the data obtained from the Hawaii survey, the Hawaii survey provides objective evidence of a high degree of bias against Michael Miske, which comes from local traditional media and social media coverage about this case,” Weinberg said in his declaration.

While acknowledging “the publicity at least in the mainstream media has not yet been so extensive as to ‘saturate’ the community,” the motion targets coverage by Civil Beat.

“At least one media source, Civil Beat, has published extensively on the Miske case. By his own calculation Ian Lind, who is both an ‘investigative reporter and columnist’ for Civil Beat and a writer of his own personal blog, has published ‘over 100 articles and blog posts about the case,’” the motion states in a footnote.

Just how much or what type of pretrial news coverage is enough to require a change of venue isn’t a straightforward matter, but it appears requests to change the locations of trials due to news coverage are not often granted in federal cases.

A article reported “there had been just ten successful Rule 21 motions at the district court level since 1975,” and a 2021 New York Law Journal article reported an informal, non-scientific survey of reported cases just three more successful change of venue motions in the intervening years.

And, in a series of high profile criminal cases that prompted intense national as well as local reporting, the U.S. Supreme Court has affirmed a high bar before requiring a trial to be moved to a different location due to a “presumption of bias” created by pretrial publicity. One accused the court of setting “nearly impossible legal hurdles … for defendants to succeed on their change-of-venue motions.” 

For example, the trial of Dzokhar Tsarnaev, the accused Boston Marathon bomber, was allowed to be held in Boston, despite saturation news coverage that included graphic video of the attack and its aftermath. 

Similarly, the 2005 criminal trial of Jeffrey Skilling, the former CEO of Enron, was allowed to proceed in Houston, the company’s home base, despite the intense local and national reporting of the accounting and securities fraud that led to the collapse of the once high-flying energy corporation, which shook the foundations of the industry and the economy.

Despite those and other precedents, the attorneys for Miske and his co-defendants argue this case “is unique to Hawaii … a localized and sensational story in Hawaii that is followed by people in Hawaii.”

Motions Abound

The motion seeking to move the trial comes at the end of a tumultuous two weeks marked by a flurry of court filings. On Jan. 13, Miske’s lead trial counsel, Thomas Otake, filed a motion to withdraw from Miske’s case, citing a conflict of interest based on information he said prosecutors had disclosed the previous day.

Later the same day, the government filed a motion seeking to disqualify Otake and co-counsel Lynn Panagakos, due to what prosecutors described as serious conflicts unrelated to the one cited by Otake. According to prosecutors, the attorneys are in the legally awkward position of being witnesses to alleged obstruction of justice because they solicited, and later submitted in court, a set of character reference letters that included two allegedly fraudulent letters.

On Monday, Otake and Panagakos filed a new motion to separate the two counts of obstruction of justice from the larger trial in order to avoid any conflicts they might have related to the letters. This would, they argue, allow them to continue to represent Miske during the trial on the remaining 20 criminal counts.

At the same time, Miske’s attorney’s have asked the court’s permission to file a motion to delay the trial once again. The trial was only recently delayed five months, and is now scheduled to begin on Sept. 11. No action had been taken on that request as of Wednesday afternoon.

Meanwhile, the court has set a series of hearings where these tangled issues will be argued and presumably decided.

On Feb. 10, Judge Derrick Watson, who is presiding over the Miske case, is scheduled to consider the government’s motion to disqualify Otake and Panagakos, and their arguments in response, along with the separate but related motion to sever the two counts of obstruction of justice.

Then on Feb. 13, Magistrate Judge Kenneth Mansfield will hear the government’s request that he reconsider his denial of Otake’s motion to withdraw. Whatever his decision, it seems likely this will then be appealed to Watson.

And, finally, a hearing on the motion to move the trial to another city is scheduled to be held before Watson on March 24.