The Hawaii US Attorney’s Office has made a recommendation stating whether or not it wants to seek the death penalty in the case of Michael J. Miske, Jr., the former owner of Kamaaina Termite and Pest Control, and other related businesses, who faces charges involving multiple federal crimes, including four capital offenses related to the kidnapping and murder of 21-year old Jonathan Fraser in July 2016.

The disclosure came in a document filed in Honolulu’s federal court yesterday (May 25).

“This office has already submitted its recommendation regarding the death penalty and is awaiting a decision from the Attorney General of the United States,” the motion said.

The substance of the recommendation was not disclosed.

The recommendation of the local US Attorney goes to the Justice Department in Washington, where it is reviewed, and the case analyzed by other attorneys before it is submitted to a death penalty committee, which in turn makes their recommendation to the Attorney General for a final decision, life in prison or death.

The process, described in this 2001 Justice Department report, is largely unchanged.

The protocol requires United States Attorneys to submit cases involving a pending charge of an offense for which the death penalty is a legally authorized sanction, regardless of whether or not the U.S. Attorney recommends seeking the death penalty. The death penalty cannot be sought without the prior written authorization of the Attorney General.

The U.S. Attorneys’ capital case submissions are sent to the Criminal Division and must include a death penalty evaluation form for each defendant charged with a capital offense, a detailed prosecution memorandum, copies of indictments, written materials submitted by defense counsel in opposition to the death penalty, and other significant documents and evidence as appropriate. The Capital Case Unit of the Criminal Division reviews the submission, seeks additional information when necessary, and drafts an initial analysis and proposed recommendation.

The case is then forwarded to a committee of senior Justice Department lawyers, the Attorney General’s capital case review committee. The review committee meets with the Capital Case Unit attorneys, the U.S. Attorney and/or the prosecutors in the U.S. Attorney’s office who are responsible for the case, and defense counsel. During this meeting, defense counsel are afforded an opportunity to present any arguments against seeking the death penalty for their client. The review committee considers “all information presented to it, including any evidence of racial bias against the defendant or evidence that the Department has engaged in a pattern or practice of racial discrimination in the administration of the Federal death penalty.” USAM 9-10.050. The review committee thereafter meets to finalize its recommendation to the Attorney General, to whom all submitted materials are forwarded. The Attorney General makes a final decision as to whether a capital sentence should be sought in the case.

As a death penalty-eligible defendant, Miske has already been assigned a “learned counsel” and a mitigation investigator, who are already working on their report on mitigating factors they believe must be considered as Miske’s case is reviewed.

Hawaii abolished the death penalty in 1957. Although the federal government is not bound by the state’s policy, it is certainly a political and social factor that will be at least taken into account when the final decision is made.

The disclosure that a recommendation has been forwarded to the Justice Department was made as part of a motion seeking to delay the scheduled trial in the case from September 2021 to “a date in late March 2022.”

The request for a delay is supported by Miske and eight of his co-defendants, one of whom, Norman Akau III, has already entered in to a plea deal with prosecutors which has not yet been reviewed and approved in court. Another co-defendant, Hunter Wilson, pled guilty in early May. Two of the defendants, Michael Buntenbah and Jarrin Young, do not support the delay, and their attorneys have indicated they might oppose the motion in court, prosecutors said.