What a difference a day makes!

Sometime shortly after noon yesterday, John Stancil, Michael J. Miske Jr’s younger half-brother and alleged longtime understudy and partner in crime, appeared before Judge Derrick Watson in an unusual Sunday session. Stancil, 36, was charged with a single count of racketeering conspiracy via “information,” a legal process that does not require a grand jury indictment. He agreed to the charge by information, was arraigned on the new charge, and then entered a guilty plea. It was all over by a few minutes after 2 p.m., when minutes of the court session were posted to the case docket.

See my story in Civil Beat this morning (“Miske Is Set To Stand Trial Alone When His Brother Takes A Last-Minute Deal / Opening statements in the high-profile case are expected to begin Monday in federal court in Honolulu“).

Although Stancil’s plea was noted in court minutes, his written and signed plea agreement has not yet been filed in court, so it is not known whether he has agreed to testify against the remaining defendant in the case, his brother, Mike Miske.

By 8:30 p.m., Miske’s attorneys filed a motion in which they claim to have been blindsided by Stancil’s plea, as well as the plea 10 days ago by Delia Fabro-Miske, who was married to Miske’s late son, Caleb.

The attorneys, Reno, Nevada-based Michael Kennedy and Honolulu attorney Lynn Panagakos, say they only learned Stancil had flipped when a notice was filed in their case acknowledging Stancil’s plea and vacating his trial dates and all related motions and deadlines. Clearly, Stancil’s plea was not expected.

In their motion, Kennedy and Panagakos are now requesting that jurors who are scheduled to appear in court this morning be dismissed, and jury selection begin anew, to avoid the prejudice that inevitably comes when a co-defendant pleads guilty after a trial has begun, which could deprive Miske of the constitutional right to a fair trial.

The prejudice which can flow from a co-defendant’s guilty plea after trial has begun is at least threefold: (1) the jury can draw adverse or unfair inferences against the remaining co-defendants; (2) the jury could use the former co-defendant’s admission of guilt as evidence of the guilt of the remaining co-defendants; and (3) the jury could give the former co-defendant’s testimony undue weight. Here, all three forms of prejudice exist under unique circumstances which render jury instructions inadequate to mitigate this prejudice.

The motion goes on to speculate as to how Stancil’s plea, along with that of Fabro-Miske, could impact the trial.

First, they note that the three–“Mike, Johnny, and Delia”–have had a joint defense strategy since their arrests in 2020. “They have been sharing confidential work product and defense strategy under a joint defense agreement,” according to the motion.

Every juror saw Mr. Stancil and heard his claim of innocence. Every juror who is not an alternate juror saw Ms. Fabro Miske and heard her claim of innocence. A majority of jurors individually heard counsel for Mr. Stancil or counsel for Ms. Fabro Miske proclaim not only their own client’s innocence, but also Mr. Miske’s innocence. During individual voir dire, in furtherance of the joint defense strategy then being pursued by all three defendants, counsel for Mr. Stancil and counsel for Ms. Fabro Miske each strongly suggested to individual jurors that there would be a lack of evidence sufficient to convict not only their own individual client, but all three defendants, “Mike, Johnny and Delia.” Now, these same attorneys are agreeing that their clients are no longer entitled to the presumption of innocence, and that their clients are in fact guilty. This would become clear to the jurors when they hear that Ms. Fabro Miske has pled guilty and they further hear or inevitably conclude that Mr. Stancil has pled guilty.

Further:

…[A]t the evidentiary hearing on the admissibility of co-conspirator statements, the government expressly recognized that notwithstanding the volume of exhibits, this is primarily a cooperating witness testimony-based trial. During questioning of individual jurors, counsel for Mr. Stancil and counsel for Ms. Fabro Miske each strongly suggested to individual jurors that the government’s “snitches” and “rats” should not be believed. Indeed, counsel for Mr. Stancil devoted considerable time to questioning individual jurors about why “snitches” are called “rats” instead of other creatures, and he used colorful, memorable metaphors to make this point. Now, however, Mr. Stancil, Ms. Fabro Miske, and their attorneys, all agree that: (1) facts to which these “snitches” and “rats” are expected to testify are true; and (2) these “snitches” and “rats” are so believable that Mr. Stancil and Ms. Fabro Miske are now admitting they are guilty. Thus, Mr. Stancil and Ms. Fabro Miske’s guilty pleas will also impermissibly bolster the credibility of these cooperating government witnesses.

The government has not yet had an opportunity to reply to Miske’s request to restart jury selection, and it would appear that there’s no way to avoid at least a temporary delay in the start of the trial in order to have a hearing on this late request.