My story in Civil Beat on Sunday provided a good picture of Judge Derrick Watson’s frustration at the responses to the series of concerns he raised during Friday’s hearing about a survey commissioned by the Miske defendants. It purported to show “reliable and objective evidence of actual prejudice” against former business owner Michael Miske and his co-defendants among potential jurors in Hawaii.

The initial motion seeking to move the trial out of Hawaii was largely based on the argument that inflammatory pretrial publicity meant Miske and other defendants could not get a fair trial unless the trial were moved out of state. It appears the jury consultant’s survey was originally intended to measure the extent to which extensive news media coverage had created actual bias in the community against the defendants.

The prejudicial and inflammatory pretrial publicity in this case has affected the defendants right to receive a fair trial.

Due process requires a change of venue when the defendant can show a “reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.”

However, defense attorneys soon had to admit that that there really hasn’t been much news coverage of the case, with the exception of continuing coverage by Civil Beat. As a result, attorneys began to describe the survey findings as direct empirical evidence of actual bias against Miske in the general public, rather than as a measure of the impact of news reporting.

The survey’s flaws were attacked head-on by prosecutors in their opposition to motion for a change of venue.

Defendants argue that any jury chosen in Hawaii will be actually prejudiced against them. But their arguments reflect a misapprehension about what constitutes “actual prejudice” under the Supreme Court’s precedents.

As the Supreme Court has explained, the critical question in jury selection is whether “jurors will set aside their preconceptions when they enter the courtroom and decide cases based on the evidence presented.” Skilling, 561 U.S. at 399 n.34; see also id. at 398-99 (“Jurors need not enter the box with empty heads in order to determine the facts impartially. It is sufficient if the jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court.”). That is why, as the experienced counsel representing Defendants are well aware, the critical question in jury selection is whether any potential juror can be fair and impartial.

Prosecutors, in their memo, explained the problem further.

There is a fatal flaw in Defendants assertions: although their motion is founded upon the results of their opinion survey, their survey failed to ask the questions that would have shed light on whether any survey respondents in fact held opinions that could not be “laid aside” or that were “fixed.” Instead, the survey merely examined the extent to which participants had heard any information about the case, and whether that information gave them any tentative view of Defendants’ guilt. See ECF No. 747-6 (asking about survey participants’ familiarity with the Miske case and whether, “Based on what you know do you think the defendant is? GUILTY/NOT GUILTY/UNDECIDED”. It did not examine how much information any survey participant had heard, how strongly any tentative views were held, or how difficult or easy any respondent would find it to set those views aside. In short, Defendants constructed an opinion survey in which they failed to ask questions that would provide information about the issue that actually matters in assessing actual prejudice.”

By conflating familiarity with press coverage, on the one hand, and actual bias, on the other, Defendants’ have failed to heed the Supreme Court’s admonishment that “prominence does not necessarily produce prejudice,” and that “juror impartiality” does not “require ignorance.”

Attorney Cynthia Kagiwada, who took the lead in the motion for a change of trial venue, responded with their survey consultant’s explanation that direct questions about whether a respondent can “set aside” their personal views are generally avoided because, he said, most will say “yes”.

However, neither Kagiwada nor the consultant responded to prosecutors’ assertion that indirect questions can be substituted (questions such as “how much information any survey participant had heard, how strongly any tentative views were held, or how difficult or easy any respondent would find it to set those views aside”).

Judge Watson came down hard on exactly this point, and slammed the survey consultant’s avoidance of questions to test whether respondents would be able to set aside their own opinions.

He paraphrased the consultant’s position: “I knew what the answer was going to be, and it would go against my client’s interest. So I didn’t ask it.”

“It was a ridiculous answer,” Watson said, and went on to emphasize his point.

“You anticipated the answer, and you don’t like the answer,” Watson repeated. “So I’m not going to ask the question.”

“I was offended!”

And, it appears, with good reason.