Here we go again. It appears yet another 4-month delay in the trial of former Honolulu business owner Michael J. Miske Jr. and five remaining co-defendants, is possible, even likely.

Judge Derrick Watson gave attorneys representing Delia Fabro-Miske, who was married to Miske’s late son, Caleb Miske, a green light to formally file their motion asking for the 4-month delay. Any opposition to the motion by other defendants, or by the government, is due on Friday, July 28, with any replies due Friday, August 4.

Marcia A. Morrissey, a Los Angeles-based attorney, and co-counsel, Honolulu attorney Donovan A. Odo, say they have received nothing to date from either of Fabro-Miske’s former lawyers, and have had to start their legal review of the case and the massive evidence from scratch.

Morrissey spelled out the problem in startling detail in a draft motion filed in Honolulu’s Federal District Court on Friday seeking permission of the court to submit the motion to continue the trial.

The undersigned counsel were appointed to represent Ms. Fabro-Miske on February 9, 2023, just a little over five months ago. We have received no work
product from Ms. Fabro-Miske’s former attorneys who, collectively, represented her for 18 months. No fruits of any defense investigation have been received from former counsel, if any was even conducted. There is no record of former counsel ever providing a copy of any discovery to Ms. Fabro-Mike, or ever conducting any meaningful, substantive discovery review with her. Former counsel did not file any dispositive motions on Ms. Fabro-Mike’s behalf, and there is no indication whether former counsel made an informed legal and/or strategic decision not to do so. The lack of work product received, coupled with the other information set forth in the attached Declaration of Marcia A. Morrissey, raises serious questions as to whether Ms. Fabro-Miske received effective assistance of counsel prior to undersigned counsel’s appointment.

For three months following her indictment in July 2021, Fabro-Miske was represented by Jeffery T. Arakaki, who asked to withdraw from the case for medical reasons at the beginning of November. On November 4, 2021, attorney John Schum was appointed in his place, and represented her for 15 months.

Morrissey and Odo were appointed to take over from Schrum on February 9, 2023.

During the time Schum represented Fabro-Miske, he was defending himself from disciplinary action by the California State Bar. He is currently facing an action by the Hawaii Office of Disciplinary Counsel seeking reciprocal discipline consistent with the order in California.

“Through no fault of Ms. Fabro-Miske or inadvertence or negligence on the part of her current lawyers, her defense cannot be ready for trial in January 2024,” Morrissey wrote in the motion to continue.

Fabro-Miske is charged with being a participant in a racketeering organization allegedly controlled and directed by Mike Miske, and with bank fraud for allegedly making false statements and submitting fraudulent documents in a 2017 loan application to Bank of Hawaii.

Watson has been pressured by defendants who say the more than three years they have already been in pre-trial custody is a violation of their constitutional rights. So far, those arguments have not prevailed, but the pressure builds with each successive delay. Watson has also previously warned attorneys that he will critically review any requests for additional delays, while admitting that further delays may be necessary.

The court has been preparing to send out an initial survey to about 2,000 potential jurors seeking information about their availability for a trial that could last five months. There are now many moving parts, and it gets harder to accommodate all the different parties as the trial date gets closer.