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Following a brief hearing in Honolulu’s federal court on Friday morning, Chief Judge Derrick Watson granted a request by attorneys representing accused racketeering ringleader Michael J. Miske Jr. for a four-month delay in the scheduled trial.

The trial of Miske and six remaining defendants will now begin in January.

Miske and 10 others were arrested in July 2020 after being charged in a 22-count indictment with offenses running the gamut from racketeering conspiracy, murder, kidnapping, conspiracy to distribute cocaine and other drugs, armed robbery, weapon offenses, use of a chemical weapon, bank fraud, and obstruction of justice.

Six of the original defendants have already pleaded guilty, and are cooperating with prosecutors. Two additional defendants were added to the case in a July 2021 superseding indictment.

Miske is personally charged in 18 of the 22 counts contained in the latest third superseding indictment filed in December.

The trial was originally scheduled to begin in September 2020, but has been delayed several times in response to the volume of evidence that has been disclosed to defendants and their attorneys in the process of discovery.  The most recent change in the trial scheduled was made on Jan. 25, when the trial was postponed from April until September.

If the trial begins in January 2024 as now scheduled, more than 3-1/2 years will have passed since Miske and the other original defendants were indicted and arrested. Despite the delay of several years, the case still complies with federal “speedy trial” requirements because the bulk of delays have been requested by or agreed to by attorneys for the defendants, and so do not count toward the deadline for a timely trial.

The request for this latest continuance follows a March 24 decision by Watson that resulted in the termination of attorney Tom Otake, lead attorney on the Miske legal defense team, due to conflicts of interest associated with a 2014 meeting between Miske, Otake and Wayne Miller, a key Miske associate. 

Miske arranged the meeting, held in the parking lot of a Waikiki elementary school, to hear Miller’s description of a federal drug bust that broke up the attempted purchase of more than 20 pounds of cocaine in California, resulting in seizure of the drugs along with $300,000 of Miske’s cash.  

The government argued that it will need to call Otake as a witness to validate Miller’s expected testimony about the meeting and the drug deal, creating an unavoidable conflict between Otake’s roles as witness and as trial attorney. Watson agreed, and Otake was out.

Otake, considered a top-tier criminal defense attorney in Hawaii, had been expected to be the lead attorney in the trial, giving opening and closing statements, directing the jury selection process, and questioning key witnesses. His loss has created a hardship for Miske’s two remaining attorneys, Lynn Panagakos and Reno-based Michael Kennedy. While both are also highly regarded and experienced defense counsel, they must now scramble to cover the responsibilities that had been carried by Otake.

Ken Lawson, a former criminal defense attorney who is now a faculty specialist at the University of Hawaii’s William S. Richardson School of Law and co-director of the Hawaii Innocence Project, notes that these attorneys have other clients and other cases they are handling, underscoring the need for additional time to prepare for a trial of this magnitude.

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During Friday morning’s hearing, Kennedy argued the requested additional delay is a necessary remedy for the hardship created by Otake’s withdrawal from the case.

“Mr. Otake had been Mr. Miske’s choice as lead attorney, and now he has asked me to fill that role,” said Kennedy, who stepped into the case in November, and how faces a significant challenge to become familiar with the evidence in the case, the cast of a potential 300 witnesses, and to prepare for an estimated 70 days of trial.

Evidence in the case now includes more than 2 million pages of documents, data extracted from 51 digital devices, including phones, iPads, and computers, eight search warrants for contents of social media accounts, “in excess of 11,000 native files,” along with more than 200 hours of audio and visual recordings, 53.6 terabytes of pole camera data from surveillance of the exterior of the Kamaaina Termite offices on Queen Street, and 40 terabytes consisting of scanned financial records from Miske’s various businesses.

And on Jan. 31, the government agreed to release 150 “digital devices” for inspection, including DVR systems, computers, mobile devices, hard drives, thumb drives, and DVDs, containing over 200,00 video clips on the DVR systems alone. 

Kennedy told Watson that the four-month extension is not all the time he would like to have, but only a reasonable amount of time to prepare for his new role as lead counsel.

Assistant U.S. Attorney Micah Smith then began to review the government’s objections to the requested delay, referring to several court decisions which, he said, supported the government’s view.

Smith hadn’t gotten far when Watson interrupted and quickly left little doubt which way he was going to rule.

“I’m totally shocked the government opposes the motion,” Watson said.

The overarching principal of the legal system is “common sense,” Watson said.

He went on to describe the request as “modest,” pointing out that it only asked for a four-month delay, not years worth of delays.

Watson further noted that the four months include both the Thanksgiving and Christmas holidays.

“If one of the government’s attorneys were to have to withdraw from the case, I’m sure the government would be here asking the same things,” Watson said. “So it just seems odd to me that when the lead attorney for the defense goes by the wayside, the government would abandon common sense and oppose the request.”

Watson then noted attorneys for two defendants, John Stancil and Jarrin Young, had filed objections to the trial delay, which he criticized for simply saying “we object” without providing any reasons. Watson dismissed these objections as “completely useless.”

He then invited any of the defense attorneys to speak up and put their reasons for objecting on the record. 

His invitation was met with stony silence from the defense counsel seated along one side of the courtroom.

When none rose to his challenge, Watson said: “The comments are as illuminating as the brief’s were.”

Without further delay, Watson granted the motion.

Watson’s order, filed Friday afternoon, found that “in light of the specific circumstances of this case, which include its complexity and voluminous discovery, and the recent withdrawal of lead counsel for the lead defendant Miske, it is manifestly reasonable for a four-month continuance in order to allow Miske’s remaining counsel, one of whom has been involved in this case since only November 2022, to prepare adequately for both pretrial proceedings and trial.” 

“In fact,” Watson wrote, “the failure to grant such a modest continuance, taking into account the exercise of reasonable diligence, would result in a miscarriage of justice.”

The trial is now scheduled to begin on Jan. 8, and take an estimated five months to complete.