Federal Judge Derrick Watson has denied a motion filed by Delia Fabro-Miske that would have further delayed the scheduled trial of former Honolulu business owner, Michael J. Miske Jr., and his remaining five co-defendants.

Watson’s order, filed on Monday, August 7, reviewed the criteria used to judge whether a delay, or continuance, is justified, and found none of the issues cited in Fabro-Miske’s motion tipped the scales in favor of the requested 4-month continuance.

The trial was initially scheduled for September 2020, but has been repeatedly delayed. The most recent delay was granted on April 29 at the request of Mike Miske after his lead trial attorney was removed from the case due to conflicts of interest. The trial is now scheduled to begin in January.

Prosecutors did not oppose the request for the additional 4-month delay.

Watson’s order begins by reviewing three factors to be considered when deciding whether “the ‘ends of justice’ outweigh the best interest of the public and the defendant in a speedy trial.”

(1) whether the failure to grant a continuance would result in a “miscarriage of justice;

(2) whether the case is “so unusual or so complex” that it would be unreasonable to expect adequate preparation within the time limits prescribed by the STA; and

(3) whether, in a case that is not so unusual or complex, the failure to grant a continuance would deny defense counsel reasonable time for effective preparation, taking into account the exercise of due diligence.

Watson then laid out the factors the 9th Circuit Court of Appeals would consider to determine whether a district court has “abused its discretion” by denying a motion of this kind.

Ninth Circuit Court of Appeals considers the following four factors:

(1) the extent of the defendant’s diligence in readying her defense prior to the date set for trial;

(2) the likelihood that the continuance would serve a useful purpose;

(3) the extent to which a continuance would inconvenience the district court, the parties, or witnesses; and

(4) the extent of prejudice, if any, that the defendant would suffer from denying a continuance.

Fabro-Miske’s attorney, Marcia A. Morrissey, argued in her motion that additional preparation time is necessary to review the massive evidence in the case, and that they will be unable to identify all potential witnesses in time for an August 29 deadline.

Her motion argued “failure to grant a continuance would deny counsel for Ms. Fabro-Miske the reasonable time necessary for effective preparation, due to undersigned counsel’s need for additional time to review and organize extensive discovery, including various iterations of the discovery; time to investigate the case informed by unredacted discovery and information that will permit defense counsel to seek the issuance of necessary pretrial subpoenas and to pursue necessary pretrial investigation….”

Watson responded in his order:

Fabro-Miske points to no evidence that she could not produce, nor any defense strategy she could not pursue, if trial was to remain in January 2024, as opposed to four months later. Instead, as mentioned, she simply relies on the abstract notion of additional time giving her the ability to do some unknown thing(s) in the future.

This finding was restated later, when Watson concluded “there is no basis on this record for the Court to find that Fabro-Miske will be able to pursue a defense strategy, interview witnesses, or review discovery only by continuing trial for four more months, as opposed to proceeding on the current schedule.”

Ultimately, Watson ruled none of the legal factors weigh in favor of the requested 4-month delay.

At the same time, Watson noted the impact of a further delay on the court and at least one other co-defendant who opposed this latest continuance.

It has been four years since the original sealed indictment of Miske and one other man on drug charges, and three years since a first superseding indictment updated to add numerous other charges and co-defendants, and placed the charges in the context of an overall charge that Miske was the leader of a racketeering organization that encompassed the other crimes being charged.

After four years, Watson wrote, “…the Court’s calendar generally (is) being held hostage to the ups and downs of this case and its anticipated
trial length.”

Watson order states that “in order to prepare for the anticipated scope of pretrial motion practice and potential jury-pool review in this case, the undersigned has already begun rescheduling all assigned civil cases set for trial in the fall of 2023 to dates at least a year later. Fabro-Miske’s requested continuance would require those cases to be rescheduled once again.”

It is possible that Morrissey could sharpen her argument and bolster it with specific evidence showing the requested 4-months is vital to Fabro-Miske’s defense. But Watson has made it clear that the many moving parts, the number of defendants, and the trial logistics weigh against further delays.

Watson’s ruling is included below.

Order Denying Defendant Delia Fabro-Miske's Motion to Continue Trial by Ian Lind on Scribd