I dropped into the Miske trial again on Thursday, and wanted to share my impressions. This isn’t meant to be a report on the testimony, but mainly my reaction to the scene playing out in the courtroom.

Drama, performance, and story telling are a major part of any trial, but are even more important in a case, such as the the trial of former Honolulu business owner and accused racketeering boss, Michael J. Miske Jr., where the prosecution case rests, in part, on the testimony of former defendants who have flipped, pleaded guilty, and are now cooperating with prosecutors and expected to testify against their former boss.

Miller is only the second of those former associates to testify in Miske’s trial. There are eight additional co-defendants included on the government’s witness list, along with at least another nine people charged separately who have also pleaded guilty of being part of, or associated with, Miske’s alleged organization.

More than a year ago, I spoke with former high-flying defense attorney Ken Lawson, now on the staff at the University of Hawaii Law School, who accurately predicted Miske’s defense attorneys would have to attack the credibility of each witness in hopes of creating at least some measure of doubt about their testimony in the minds of at least one juror.

And this is where the trial becomes a balance of evidence and performance.

The courtroom battle ultimately gets down to whether prosecutors or defense attorneys are able to control the narrative by creating the best story, Lawson said.

“The real trial comes down to who can marshal the best story with the facts of the case,” Lawson said. “In any good story, there’s the good guy and the bad guy.”

“And as a defense attorney, you want to make the government, and its witnesses, the bad guys. You try to create a story so that the jury doesn’t like what the government is doing.”

Right now, two weeks into trial testimony, it seems to me that the government’s case is ahead on evidence. But, in terms of performance, the defense is ahead.

There’s a stark difference between the legal styles of prosecution and defense attorneys. This was startlingly apparent during Thursday’s court session. It was the fourth day of direct examination of Wayne Miller, a confessed drug dealer and member of Miske’s of Miske’s inner circle, by Assistant U.S. Attorney Mark Inciong. After a couple of hours, Miske’s lead attorney, Reno-Nevada based Michael Kennedy, a former federal defender, began his cross examination of Miller.

The contrast between their approaches was dramatic.

Inciong’s approach is low key, slow paced, deliberate. He plodded through a series of questions that seemed to flit from one subject to another, eliciting answers that probably checked off boxes in the long list of what must be gotten into evidence to make the government’s case, but providing few clues for members of the jury, who have to keep track of details that so far seem only minimally related to each other, and fit them into a coherent story line.

His presentation was measured rather than flashy, his questions to the point, his voice level, showing neither emotion nor excitement. Businesslike. Competent. Carefully drawing out needed information. I’ll get to the substance later, but for now, I’m trying to describe the overall impression.

Then came Kennedy. Right off the bat, he bore in relentlessly, his voice loud and authoritative, assertive, demanding, with a tone conveying outrage.

He did not address a single specific crime Miller’s testimony tied Miske to, even Miller’s testimony linking Miske to the murder of Jonathan Fraser, and the ambush and attempted murder of Lindsey Kinney.

Kennedy ignored those specifics and instead hammered home one simple theme.

You, Wayne Miller, are a bad guy, aren’t you? You’re a drug dealer. A addict dependent on Oxy. A felon. You continued your crimes right under the noses of the FBI even after agreeing to serve as a confidential informant on June 1, 2017. You lied. Even while working with the FBI, you took part in a kidnapping, didn’t you? You dealt drugs, didn’t you?

To most of Kennedy’s rather leading questions, Miller could only muster a “yes,” with an occasional “no,” or a brief explanation. But Kennedy’s full-court-press style of questioning gave Miller no escape.

As a performer, Kennedy earns a very high score.

Each question, asked in rapid fire, was like a drum beat. And he didn’t miss a beat.

The following are not direct quotes, but it captures the thrust of Kennedy’s questioning.

Kennedy: On July 13, 2018, you did what you had been doing, selling drugs. Miller: yes.

Almost every question elicited a single answer, yes, because most questions were phrased to exclude all other answers.

And you sold drugs to an undercover agent, working with a DEA confidential source, didn’t you?

You know that’s a mandatory minimum of 10 years.

That very day, a criminal complaint was filed.

With a mandatory minimum of 10 years.

Ten years to life, on that one sale.

Kennedy threw his questions out in a taut staccato style. Taking the basic elements of Miller’s record and turning them into a mantra.

He hit on Miller’s addiction to Oxycodone.

Miller had estimated that at one point, it had cost $2,000 a pay to obtain the drugs he needed.

Kennedy was relentless.

That’s $2,000 per day. Miller answered simply, yes.

That’s $60,000 a month, 30 days. Miller, tries to explain, he couldn’t do that every single day.

Kennedy, ok. Give or take 5 or 10 days a month. $2,000 a day. $40,000 a month.

Day after day. Month after month, even after you became an FBI informant.

In August. In September. In October. Every month.

Short, simple statements, masquerading as questions. Reinforcing each other.

Not denying Miller’s prior testimony, But underscoring the basic point for the jury. This testimony is the testimony of a criminal. A liar. A drug addict. A kidnapper. Can he be trusted?

Of course, this isn’t the only thing happening.

Lawson’s comments about trial tactics became the basis for my Civil Beat story published in August 2022 (“The Miske Case Has Become One Of The Most Complex Prosecutions In The Country / Defense attorneys are preparing a major attack against a prosecution case that has amassed more than 2 million documents“).

“Of course, criminals don’t hang out with priests and nuns, they hang out with other criminals,” Lawson said, so prosecutors will buttress the testimony of former Miske associates with corroborating evidence rather than relying on their words alone.

Prosecutors can turn to cellphone records, emails, text messages, location data, surveillance photos or recorded conversations, bank records, documents and other types of objective evidence to make connections and support witness testimony. The sum of all these parts is stronger and more persuasive than the individual elements.

And all sides acknowledge there is an amazing amount of confirming evidence to draw on. How the trial proceeds is certainly going to be interesting.