As expected, my latest story is available over at Honolulu Civil Beat today (“Miske Defense Says It Isn’t Getting Key Evidence Against Him“).

It’s based on a series of court filings over the past week by Lynn Panagakos, a former federal prosecutor who is now one of Miske’s lead defense attorneys. In this series of documents, Panagakos challenges both the government’s failure to produce certain records in the pre-trial process of discovery, such as those listed in indexes or other summaries but have not yet been turned over, as well as extensive redaction of information that she argues should be made available in unredacted form.

Here’s a capsule summary of the discovery process by the US Department of Justice.

Prosecutors must also provide the defendant copies of materials and evidence that the prosecution intends to use at trial. This process is called discovery, and continues from the time the case begins to the time of trial. A prosecutor has a continuing obligation to provide the defendant documents and other information which may reflect upon the case. A failure of the prosecutor to do so can expose the prosecutor to fines/sanctions by the court. Further, the prosecutor is required to provide the defense with evidence that may hurt his case, called exculpatory evidence. This evidence could show the defendant’s innocence. If the prosecution does not provide it to the defense, it may require a new trial.

Panagokas sought and received permission to file a legal memo more than twice as long as allowed by local court rules, and her 57-page memo is full of detailed critiques of prosecutor’s actions.

The indictment was unsealed, and Miske has been in custody, for more than 17 months now. However, as demonstrated below, the Government: (1) still has not produced voluminous critical discovery and exculpatory information; and (2) has concealed other critical discovery and exculpatory information through excessive and unjustified redactions. These discovery defects are exacerbated by organizational defects, also discussed below. This combination of missing discovery, excessive redactions and poor organization renders the task of organizing the Government’s discovery akin to playing 52-card pick-up with 10,000 decks of cards all mixed together, with half of the cards blacked out and a good chunk of the cards missing.

Elsewhere in the memo, Panagakos offers this example.

Additionally, the documents in the “USA v MISKE, ET AL.” bates stamp series are heavily redacted. Voluminous clearly discoverable information has been redacted, including clearly exculpatory information. The names of most of the witnesses interviewed are redacted. The names of people about whom the witnesses have provided information are frequently redacted. Much of the substance of the information provided by the unidentified witnesses is redacted. The names of alleged conspirators and alleged members and associates of the so- called “Miske enterprise” are redacted. Information about criminal activity committed by alleged enterprise members turned Government witnesses is redacted. Even the applications for search warrants and Title IIIs are redacted.

There’s a lot going on here.

Panagakos argues that prosecutors have simply withheld too much evidence from the defense, and is seeking a general order from the court requiring that complete disclosure going forward.

But she’s also searching through an immense haystack looking for a few tiny needles, evidence of dead ends, what prosecutors likely believe were investigative leads that didn’t pan out, anything that might be used at trial to plant a smidgen of “reasonable doubt” in the minds of jurors.

She’s laying the groundwork for another delay in the eventual trial, which can then be blamed on the government. The trial has already been pushed back from an intial date in September 2020 to March 2021, then to September 2021, March 2022, and then to September 2022.

She is also slipping tidbits of information into the public record by including references to it in her extensive pleadings, even though most of the actual exhibits remain sealed and are not available to the public. To the extent that these tidbits are from those few needles of exculpatory evidence dug out of the massive haystack of materials produced so far, they may be intended to feed public speculation about Miske’s side of the story, opposed to that laid out by the government in the 22-count indictment.

And Panagakos is signaling that Miske’s attorneys will vigorously attack the credibility of at least two key witnesses, Wayne Miller and Jacob “Jake” Smith, who are among eight other Miske associates who have already pleaded guilty and are cooperating with prosecutors, with another scheduled to plead guilty next week.

In any case, head over to Civil Beat to read today’s story, if you haven’t done so already.