Attorneys representing Michael J. Miske, Jr., the owner of Kamaaina Termite and Pest Control, and other companies, have asked the federal court to order the Bureau of Prisons, and the Federal Detention Center in Honolulu, to allow contact visits between Miske and members of his legal defense team so that he can effectively participate in preparations of their legal case.

Miske and his co-defendants face charges recited in a 22-count indictment alleging they were part of a racketeering conspiracy directed and controlled by Miske, or took part in one of the individual criminal acts ranging from kidnapping and murder to armed robbery, drug dealing, and extortion. Miske is the only one facing a potential death penalty.

In a legal motion filed last week, Miske’s lawyers say they have been limited in their ability to meet directly with their client, have had appointments cancelled by prison staff, and that Miske should ot have to appeal through the detention center’s bureaucratic procedures in order to protect his constitutional rights.

Miske’s legal team consists of lead attorney Thomas Otake, along with Lynn Panagakos and San Francisco-based Michael N. Burt, appointed for his experience in capital punishment cases.

Miske’s situastion is different from all other prisoners in Hawaii and, as a result, it is unreasonable to apply the same rules that are currently applied to others in detention, the legal team argues.

First, they argue, he is the only person housed in the Federal Detention Center who faces death-eligible charges. The maximum penalty for four of the charges pending against alleged gang leader carry maximum of live in prison or a possible death penalty. Each of these charges are related to the alleged kidnapping and murder of Jonathan Fraser on July 30, 2016.

Fraser was best friends with Miske’s son, Caleb, who died in March 2016 as a result of injuries received in a high-speed car crash months earlier involving a car both boys were in. Miske blamed Fraser for the crash and Caleb’s death, publicly claiming he had been the driver, although available records all confirm Caleb had been behind the wheel. Prosecutors allege Miske asked one of his associates to plan and organize the murder, and agreed to pay to have it carried out.

And Miske’s attorneys argue the massive amount of evidence that prosecutors have complied in the case is substantially different than what is faced by other prisoners. They argue Miske needs regular access to a computer and sufficient time to search through, review, and comment on the hundreds of thousands of pages of records. To date, prosecutors have turned over more than 450 gigabytes of data containing some 160,000 files, as well as 32 disks of recordings and other data. Current prison rules limit Miske to only two-hours per day to access electronic data.

These factors require additional flexibility in applying the facility’s standardized rules, the attorneys argue.

“The United States Supreme Court has expressly recognized that death is a different kind of punishment and when life is at stake, courts must be particularly sensitive to ensure that every safeguard designed to guarantee defendant a full defense be observed,” the motion filed last week argues, citing cases in Florida and Georgia dating back to the 1970s.

In a December 18 order, Magistrate Judge Kenneth Mansfield directed lawyers representing Miske, the U.S. Government, and independent counsel for the Federal Detention Center, along with the warden of the Honolulu facility, to meet by telephone or video “in an effort to resolve or limit the issues raised in the motion (emails will not suffice).”

Then Mansfield laid down a tight timeline. The government and Federal Detention Center must respond to the motion by December 31, and any reply by Miske’s lawyers is due by January 6, 2021. A hearing on the motion has been set for January 12, 2021 at 11 a.m.

See:

Memorandum in support of Motion for an Order Prohibiting the Bureau of Prisons from Taking Actions that Interfere with Defendant’s Right to Effective Counsel in a Capital Case and for Affirmative Relief.