Federal Magistrate Kenneth Mansfield has prohibited administrators of the Federal Detention Center in Honolulu and the Federal Bureau of Prisons from taking any further actions that interfere with Michael Miske’s “right to the effective assistance of counsel” in the pending criminal case in which he is facing a possible death sentence.
Miske has been in detention since July 15, 2020, when he was arrested and charged along with 10 co-defendants in a 22-count federal criminal indictment. Miske and nine others are charged with being part of a longstanding racketeering conspiracy organized and directed by Miske that alleged committed a series of crimes ranging from murder for hire and kidnapping to armed robbery, weapons offenses, extortion, drug crimes, and bank fraud. The remaining defendant is charged with assault in support of racketeering, and being part of a conspiracy to possess and distribute drugs.
Mansfield’s order, issued on Friday, January 15, 2021, was in response to a motion filed by Miske’s attorneys last month. The motion pointed to arbitrary restrictions imposed by detention center staff on Miske’s ability to communicate with his lawyers, and the failure to provide Miske reasonable access to a computer to review and comment on the immense amount of evidence in the form of computer files turned over by prosecutors to date. They argued that they could not effectively and efficiently communicate with their client if denied direct contact during visits, saying “the no-contact room creates a situation where an attorney and client are essentially in separate rooms but can see each other through a thick glass or plexiglass barrier and can only speak in raised voices to each other through small holes in the glass.”
Detention center administrators disputed the characterization of many of the specific incidents described in the motion, and cited security concerns and COVID-19 safeguards to explain and justify the restrictions.
Mansfield’s order gave Miske’s legal team virtually everything they sought.
Mansfield noted courts generally give prison administrators “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” However, Mansfield said federal law requires all detained defendants to be provided “reasonable opportunity for private consultation” with their attorneys. In addition, and perhaps more importantly, the law requires attorneys representing clients charged with a capital crime–a crime where the maximum possible sentence is death–to have “free access to the accused at all reasonable hours.”
“This statute contains no exceptions,” Mansfield’s order states. “When the government seeks capital punishment, there is no carveout that permits a detention center to deviate from providing the defendant and his counsel free access to each other at all reasonable hours. Logistical challenges, pandemic issues, or disciplinary sanctions – each of which the Combined Response emphasizes – do not provide a basis to provide Mr. Miske anything less.”
Mansfield also cited the 2016 recommendations of a national working group regarding best practices for managing digital discovery, which included a suggestion for “for purchasing inexpensive laptops with substantial storage, word processing capability, and no internet access” for use by pre-trial detainees.
What does this mean for Miske?
Mansfield’s order bars Honolulu’s Federal Detention Center and the Bureau of Prisons from taking “any actions that interfere with Mr. Miske’s right to the effective assistance of counsel in this capital case.”
In addition, the order specifically requires the detention center and Bureau of Prisons to allow contact visits “at all reasonable hours” between Miske and members of his defense team, and confidential phone calls “at all reasonable hours” between Miske and the “learned counsel” previously appointed to participate in Miske’s defense because of their in-depth knowledge and experience in providing legal defense in death penalty cases.
Finally, detention center and BOP officials are ordered to provide Miske a portable hard drive containing the digital files that are part of his defense, including the evidence against him, and up to eight hours daily of access to one of the Federal Detention Center’s computers that are shared by other detainees. Alternatively, they can provide Miske access to a computer without internet capability for up to eight hours a day.
Because Mansfield’s order rests heavily on the special consideration required by law in capital cases, it doesn’t appear likely it will lead to loosening of restrictions on any of Miske’s co-defendants.
Miske is represented by lead counsel Thomas M. Otake, co-counsel Lynn E. Panagakos, and San Francisco-based Michael N. Burt, the court-appointed death penalty defense specialist.
Trial in the case is currently scheduled for September 2021.
See:
Miske defense lawyers say federal detention center illegally restricting their access to client, iLind.net, December 21, 2020.
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A quick comment to thank you for the great coverage on corruption issues, the Miske case just another outstanding example. I would like to shift gears here for a moment to ask you, Ian, if there are any indications that the much awaited investigation of Mr. Kaneshiro and other members of his office and the C/C of Honolulu attorney are being swept under a carpet? Is there some kind of over-the-top deference to those who are attorneys behind this silence?
No, I am not aware of any indications the ongoing investigations “being swept under a carpet.” It should be pretty obvious from the case of Katherine Kealoha that attorneys haven’t been getting extra deference.
Well, I would respectively disagree on the case of Katherine Kealoha being demonstrative of any future cases against other attorneys thought to have been subject to other misconduct or offenses. She was, in many ways, the engineer of her own runaway train certain to collide with reality and self destruction. The number of people at odds and victimized by her fueled a momentum that was certain to resolve itself the way it did. That is not to say that it did not require highly professional and dedicated people to bring the case to court. We have all seen cases involving corruption or misconduct over the years die quiet and unattended deaths on “the road to nowhere” out of neglect or other rationale. Sometimes, yes, deference appears to have, in the eyes of some observers, an unseen hand in favor of rank, status, political affiliation and legal Circles.
I wonder also about Mayor Caldwell. So many of his top administration are under investigation yet we never heard what his involvement was or how he wasnt involved when he was the boss. His comment to the press “lets move on” was a big red flag.
While Caldwell’s “let’s move on” approach was unfortunate, so far there’s nothing in the public record to indicate that he could have been involved in whatever matters are under investigation. If the grand jury investigation(s) result in indictments, those could undoubtedly shed more light on the matter. To be honest, I haven’t heard a plausible scenario that accounts for what we know about the investigations to date and for a way that Caldwell would tie into it. I can imagine possibilities, but that’s very different. Either they don’t really fit, or they have no empirical support so far.