A local nonprofit law firm has objected to a request by attorneys representing accused racketeering gang leader Michael J. Miske, Jr. to seal 36 proposed exhibits filed in support of their motion to compel access to unredacted versions of evidence produced through discovery in the ongoing criminal case.

R. Brian Black, executive director of the Civil Beat Law Center for the Public Interest, filed a 13-page motion last week asking the court to deny the motion to seal the exhibits, arguing Miske’s attorneys had not provided sufficient factual basis to overcome the overriding public interest in disclosure.

In a declaration previously filed in Honolulu’s US District Court, Miske’s co-counsel, Lynn Panagakos, described the proposed exhibits as “examples of missing and unjustifiably redacted discovery” turned over by the government.

“This array of examples is necessary to illustrate the enormity of the discovery defects that currently plague this case,” Panagakos said.

The exhibits in dispute, which are among more than 700,000 pages of documents provided to attorneys for Miske and other defendants during the process of discovery, are presently covered by a blanket protective order issued by Mansfield on August 12, 2020.

It is unclear whether Miske’s attorney have requested to file the exhibits under seal in order to comply with the protective order, or whether they are asserting their own justification independent of that order.

According to that protective order:

Defendants and Defendants’ counsel shall not disclose the materials or their contents directly or indirectly to any person or entity other than persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the Court may authorize disclosure (collectively, “authorized persons”).

The protective order also provides that no documents may be filed in the court record under seal “without first obtaining leave of Court.”

However, Mansfield’s protective order also provided that “the party seeking to file a paper under seal bears the burden of overcoming the presumption in favor of public access to papers filed in Court.”

The Law Center now contends: “Defendant’s motion to seal has not met that burden here.”

Although Panagakos argued the exhibits must remain sealed to protect the identity of possible witnesses, this conflicts with the overall complaint put forward by Miske’s attorneys that “the Government’s heavy redactions, which Defendant claims make it impossible to identify witnesses or make the documents generally incomprehensible.”

“If the government already redacted these documents to protect the identity of witnesses and investigative interests, there is not basis to withhold the documents from the public,” the Law Center argues. “The extent of redactions to the documents is critical to inform the public as to how the Government complies with its discovery obligations and, once this Court rules on the motion to compel, whether the Government’s redactions are consistent with Defendant’s constitutional rights.”

Any reply to the Law Center’s objections by Miske’s attorneys, or any other party, is due January 17, after which Magistrate Judge Kenneth J. Mansfield has said he will issue a written ruling without hearing additional arguments.

The Law Center has intervened in the Miske case on three prior occasions, and was successful each time in gaining additional public disclosure.

The government’s initial request for a protective order covering materials produced in discovery also sought “blanket authority to file documents under seal.” Following an objection filed by the Law Center, Mansfield rejected the additional request.

“The proposed language is overbroad and conflicts with the public’s well-settled constitutional right of access to criminal proceedings,” Mansfield’s opinion said.

In August 2020, the Law Center successfully intervened to unseal a number of documents in a case regarding the FBI’s seizure of the Boston Whaler “Painkiller,” owned by one of Mike Miske’s companies. Prosecutors allege the boat was used in the kidnapping and murder of Jonathan Fraser.

The Law Center argued these records had “been sealed without public explanation,” and successfully obtained an order that returned them to the public record.

And last year, the Law Center filed a motion to unseal the written plea agreement between Miske co-defendant, Norman Akau, and prosecutors, which had been discussed in an open hearing considering Akau’s request to change his plea to guilty. The agreement, spelling out the terms of his guilty plea, had been sealed at the request of his defense attorney. Following the Civil Beat Law Center’s objection, the document was unsealed by Judge Derrick Watson over the continuing objections of Akau’s attorney.

Objection to Defendant Mich… by Ian Lind