On Tuesday, former IRS special agent Kenneth James Hines, wrapped up his third day of testimony as a defense expert witness in the trial of former Honolulu business owner, Michael J. Miske Jr.

Hines was an IRS criminal investigator, and later an investigative supervisor, from 1991 until the end of 2015, before becoming a consultant in private practice.

He was originally retained in January 2019 by Chris Cannon, an attorney who represented several of Miske’s businesses. At the time, Miske was anticipating being indicted on tax fraud and murder charges, and Hines was retained to examine the financial records of Miske’s Kamaaina Termite and Pest Control, and other entities, according to an August 2020 declaration that was previously filed in federal court.

Under direct questioning by defense co-counsel Lynn Panagakos on Monday morning, Hines reviewed several forms with quarterly data on the number of employees, salaries paid, and employment tax paid. Hines was asked to read each amount into the record.

After a few minutes, Judge Derrick Watson pointed out that if the prosecution intended to have Hines read through each quarterly document for the years 2010-2019, “that would keep us here for weeks.” Watson then asked for the data to be summarized to avoid unnecessary delay.

Hines then reviewed dozens of documents summarizing a variety of underlying business and bank records that were then entered into evidence, while Assistant U.S. Attorney Aislinn Affinito attempted to clarify the limits on the information made available to Hines, and to probe the ways these limitations undercut several of his primary conclusions.

At the end of her first round of cross-examination, Affinito asked Hines if he was being paid for his testimony. Hines acknowledged he was being paid $250 an hour. Hines said he was hired by Miske’s defense attorneys, but that he is paid by “the court,” and not by Miske. He said he had been working on his testimony since June 6, and had been putting in “very long days.”

After the jury left the courtroom for their next scheduled break, Judge Derrick Watson pointed out that saying “the Court” is paying Hine’s fee is “incorrect,” and directed Panagakos to correct it.

When the trial resumed, Panagakos explained that the federal Criminal Justice Act allows defendants to apply for funds from a separate account set up for this purpose that is not controlled by the court.

The Criminal Justice Act provides federal funds for attorneys, experts, and services necessary to adequately represent indigent defendants.

Miske, however, retained his own defense attorneys, who are not being paid by public funds, at least as far as I can see in the court record.

After a bit of searching, I found the answer in a federal court guide to administering the Criminal Justice Act.

§ 310.10.10 Overview

(a) Investigative, expert, or other services necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. § 3006A (link is external)), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services.

(b) In this connection, a person with retained counsel is financially unable to obtain the necessary services even if the person’s resources are in excess of the amount needed to provide the person and the person’s dependents with the necessities of life, provide defendant’s release on bond, and pay a reasonable fee to the person’s retained counsel, but are insufficient to pay for the necessary services.

I was also reminded that the Freedom of Information Act does not apply to the judiciary. However, in general, “the amounts paid to appointed CJA attorneys (or other service providers) shall be made available to the public by the court upon the court’s approval of the payment. However, different procedures apply depending on the stage of the proceeding (e.g., before or during trial, after trial where appellate review is not being pursued, after trial where appellate review is being pursued, or after appellate review has concluded), the nature of the case (capital or non-capital), and the type and date of the information requested.