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Friday turned out to be an unusually busy and consequential day in the prosecution of former Honolulu business owner and alleged racketeering boss Michael J. Miske Jr. and his co-defendants. The case has dragged on for nearly four years as defendants, attorneys and the court struggle to deal with an unprecedented amount of evidence, numerous defendants and a highly complex legal case.

The morning started with a sometimes contentious hearing in Honolulu’s federal court during which Judge Derrick Watson heard arguments for and against a motion filed on behalf of Miske and six remaining co-defendants, seeking to move their upcoming trial to Las Vegas or similar “neutral” venue because, they argued, there is too much existing bias against the defendants for them to obtain a fair trial here in Hawaii.

Watson, who hurled pointed questions and comments at defense attorneys over the course of the hour-long session, ended the hearing without announcing a decision, and said a written order would be forthcoming.

“But,” he commented to the defense attorneys as he prepared to leave the courtroom, “I can say that I wouldn’t be packing my bags for Vegas or anyplace else.”

Then, just a couple of hours later, Watson filed an order effectively removing attorney Thomas Otake from the case, although Otake had been slated to be Miske’s lead trial attorney, presenting opening and closing arguments, and assisting in questioning of witnesses.

Watson ruled Otake’s participation in a 2014 meeting with Miske and one of his associates, identified in Watson’s order only as “Cooperator 1” but identified elsewhere as Wayne Miller, created a conflict of interest that requires the attorney’s removal from Miske’s legal team. 

A few minutes later, Watson filed another order, this time giving Miske’s attorneys permission to file a motion asking for another delay in the trial, currently set to begin in September and last for about five months. Watson’s order set a Friday deadline for the motion, an additional deadline of April 5 for responses by other parties and a final April 10 deadline for any reply by Miske.

“In granting the motion for leave, the Court makes no judgment on the merits of any motion to continue that may be filed,” Watson’s order states, perhaps signaling that further trial delays may be subject to closer scrutiny by the court. 

Finding A Fair And Impartial Jury

Attorney Cynthia Kagiwada, who represents co-defendant Preston Kimoto, prepared the motion seeking to have the trial moved out of Hawaii. Miske and the five other co-defendants joined in the request, but Kagiwada presented their case at Friday’s hearing.

The motion, filed on Jan. 30, initially blamed extensive and “sensational” pretrial publicity for creating bias against the Miske defendants, singling out “sensational” prior coverage by Civil Beat. However, at Friday’s hearing, Kagiwada walked that claim back and admitted “there has not been a barrage of publicity.” But, she nonetheless argued, pretrial publicity could still become a problem as the trial nears and, presumably, news coverage increases.

After dropping the claim about biased pretrial publicity, Kagiwada said the defendants are now relying on “objective evidence” provided by the results of a survey of potential jurors in Hawaii, and a comparison group in Las Vegas, conducted by a professional jury consultant.  

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The survey found “a high degree of bias” in public opinion against Miske and co-defendants, and reported a high percentage of survey respondents in Hawaii “have already prejudged Michael Miske and found him guilty,” and further “have prejudged all of the co-defendants based almost exclusively on their association with Michael Miske.”

Judge Watson interrupted almost immediately and put his inclination on the record.

“Prejudice exists in 100% of cases, to some degree,” Watson said, and challenged Kagiwada to explain what makes the Miske case any different.

And the judge immediately signaled skepticism about the survey findings.

“The numbers in your study don’t appear to me to be concerning,” Watson said.

Although Kagiwada said the survey found 84% of respondents believed Miske is guilty, evidence of community bias, Watson directly challenged the statement.

“That is a false number,” Watson said. 

Instead, Watson clarified, 84% of those respondents who said they had heard about the Miske case believed he is guilty, but those made up just a little over half (54%) of all Hawaii respondents.

“That means 46% of the people out there have never heard of the case or haven’t formed an opinion,” Watson said. 

The jury selection process process, or “voir dire,” includes questioning of prospective jurors about their ability to set aside their own prior knowledge or beliefs about the case while serving on the jury.

“Why isn’t that sufficient?” Watson asked.

“I don’t see why we can’t find 20 or so jurors who are unbiased and with little or no knowledge about the case,” Watson said.

At one point, Watson resorted to strong language to criticize the survey for asking if respondents had opinions about the Miske case, but failing to ask the question most important in jury selection — that is, whether they can set aside those opinions and rely only on evidence presented at trial to determine guilt or innocence.

“It doesn’t ask the relevant question, ‘can that opinion be set aside?’” 

Failing that, Watson said, “it doesn’t say anything about my responsibility. It does not go to the legal requirement.”

As a result, Watson said, the survey doesn’t provide the information he needs.

“Do I give a shit about that?” Watson asked rhetorically, referring to the survey? “No, I don’t!” 

To emphasize his point, Watson pulled out a wastebasket and motioned as if he were throwing a document into it.

Although several attempts were made by Kagiwada and other defense attorneys to respond to Watson’s challenges, his parting comment made it apparent that they fell far short of what was needed.

The Parking Lot Meeting

The issue of Thomas Otake’s ability to continue to represent Miske arose in mid-January, when prosecutors presented him with information about several legal conflicts of interest. 

Watson’s ruling dealt specifically with a 2014 meeting in the parking lot of a Waikiki elementary school between Otake, Miske and one of Miske’s key associates, referred to in the documents only as “Cooperator 1,” but identified elsewhere as Wayne Miller.

Miller, who by some reports was Miske’s top lieutenant running his drug operation for a period of time, has pleaded guilty, provided detailed information on a number of matters, including planning for the murder of Jonathan Fraser, and is expected to be a key trial witness.

Miske, according to prosecutors, arranged the parking lot meeting so Miller could tell Otake what had happened when an attempted drug deal in California had been broken up by federal drug agents, who seized more than 20 pounds of cocaine and $300,000 in cash Miske has put up to finance the drug buy. 

Court records, including written plea agreements, have identified Miller and a second Miske co-defendant, Michael Buntenbah, as the two Miske associates who flew to California with suitcases of cash to make this cocaine buy.  Buntenbah has also pleaded guilty to racketeering conspiracy in a deal with prosecutors. In exchange, charges involving his participation in the 2014 cocaine deal were dropped.

Watson ruled Miller’s “credibility will be a contested issue at trial, and Otake is the only witness who can corroborate the portion of his testimony related to their meeting with Miske.”

“For the same reasons, the Court further finds Otake’s likely testimony to be significant and weighty when assessing the credibility of Cooperator 1,” now known to be Miller.

Watson found Otake would be a necessary witness to the meeting, and would be put in the position of testifying during the trial about his recollection of the meeting and, by inference, his assessment of the reliability of Miller’s testimony. 

The court rules provides that such a conflict would require Otake’s withdrawal unless his departure would create a “substantial hardship” for Miske, but Watson found that after balancing Miske’s interests with those of the court and the government, the impact would not be substantial.

Given Otake’s reputation, and his representation of Miske over a number of years, his absence will create a hardship, but in Watson’s view, not a substantial one. 

Watson noted that Miske is already represented by two “very capable” attorneys, Lynn Panagakos and Reno, Nevada-based Michael Kennedy.

Panagakos, according to Watson’s order, is the “one attorney with the ‘command and understanding of the enormous amount of discovery in this case’ − the same discovery upon which Miske relies as contributing to the hardship here, while Kennedy has ‘extensive and successful experience in federal criminal trials, including in cases involving charges like the ones here.'”

“In other words,” Watson writes, “the record clearly reflects that Kennedy and Panagakos will ‘more than adequately represent’ Miske, even without Otake’s participation.”

Further, Watson’s order notes that Otake had been expected to present closing arguments at trial, but his appearance as a witness concerning the parking lot meeting “would place Otake in an untenable position.”

The order explains: “Otake’s representation of Miske at trial, while simultaneously serving as a necessary witness to an event material to a charge against Miske, would challenge the integrity of the proceeding, disadvantage the government, and confuse the jury.”

Finally, Watson’s order finds that any hardship Miske encounters as the result of Otake’s withdrawal “is significantly mitigated by the fact that Otake would not have needed to withdraw … if Miske had not involved him in the meeting with Cooperator 1.” 

“In other words, Miske created the situation in which Otake now finds himself.”