The 6-month racketeering trial of former Honolulu businessman Michael J. Miske Jr. concluded Friday afternoon after his lead attorney, Reno-based Michael Kennedy, completed his closing statement and Assistant U.S. Attorney Mark Inciong followed with a brief rebuttal. All that remains is the verdict. The jury will begin deliberations tomorrow.

For the second day in a row, the courtroom was again almost full as the defense began its summation, unlike most days over the past six months when there were few spectators, apart from the defendant’s mother and a few family members. On most trial days, the row of seats reserved for news media has been empty.

I’ll again defer to Civil Beat’s Madeleine Valera for her excellent overview of the final day’s arguments (“Miske Defense Denies His Involvement In Conspiracy And Casts Doubt On Government Narrative“).

But here’s my take.

Kennedy did what he had to do as a defense attorney in a case in which the deck seemed stacked in the prosecution’s favor, with at least 20 people flipping, including 12 of Miske’s co-defendants who pleaded guilty before trial, along with at least 8 others who also pleaded guilty but were charged separately.

Kennedy began by making the point that after years of investigations and mountains of evidence collected, we still don’t know what happened to Johnny Fraser, the best friend of Miske’s son, Caleb. Fraser disappeared suddenly on July 30, 2016, and is presumed dead.

Prosecutors allege Fraser was the victim of a murder-for-hire plot that Miske set in motion. The motive, prosecutors allege, was Miske’s false belief that Fraser had been driving at the time of the high-speed crash in which Fraser and Caleb Miske were critically injured. Fraser recovered sufficiently to be released from the hospital, while Caleb died several months after the accident while still hospitalized.

In dramatic fashion, Kennedy chanted down all that we don’t know, despite the exhaustive investigation.

What happened to Fraser? Is there evidence he was kidnapped and murdered? If so, who killed him? Who aided and abetted? When? Where? Why?

Those all remain unknown, Kennedy said.

And he blasted the case prosecutors presented, dismissing the web of “circumstantial evidence” as nothing but “speculation.”

Kennedy then emphatically told jurors they should find Miske “not guilty” of every one of the five charges related to Fraser’s murder.

“Every one of those should be not guilty and here’s why,” he said.

The “why” was turned out to be mostly a non sequitur.

Kennedy relied on several maps which he said showed Miske’s whereabouts through the day of Fraser’s disappearance, based on a defense expert’s analysis of the location of Miske’s telephone over the course of that day and night. After tracing his movements, Kennedy emphasized that Miske had never been in Hawaii Kai at any time during that day.

Similarly, Coast Guard aerial photographs showed Miske’s Boston Whaler, initially suspected to have been purchased and used in Fraser’s kidnapping and murder, had been berthed in the Makani Kai marina in Kaneohe. No forensic evidence of Fraser ever being on board the Painkiller was found during an extensive search of the Painkiller the following year. And a search for fingerprints in the Hawaii Kai apartment where Fraser and his girlfriend had been living at the time of his disappearance also turned up nothing to implicate Miske.

Of course, the government has not alleged Miske took a personal hand in the kidnapping or murder. Instead, they alleged Miske directed a murder-for-hire plot that ended in Fraser’s death. Miske’s presence or absence from Hawaii Kai on the day Fraser disappeared was simply irrelevant to the charges, although it made for good theater.

Another of Kennedy’s assertions to the jury was, at best, disingenuous, and at worst, intentionally misleading.

As Valera’s Civil Beat story notes:

Kennedy flipped the government’s narrative that Miske had blamed Fraser for the car crash that ultimately led to Miske’s son Caleb’s death. Prosecutors say Miske falsely accused Fraser of driving at the time of the crash and told multiple people he wanted the young man dead because of it.

Kennedy told jurors that, to the contrary, Miske blamed himself, the hospital, and the driver of the other vehicle involved in the accident. Kennedy mentioned Miske had filed a lawsuit against the other driver, as evidence of his assertion that Miske hadn’t blamed Fraser.

While it is true that Miske’s lawsuit named the driver of the truck, it also named Johnny Fraser as a defendant. The lawsuit, filed in November 2017, repeated the false allegation Fraser was the driver of the car whose negligence led to Caleb’s death.

The complaint alleges Caleb “was a belted passenger in the front seat of the vehicle driven by Defendant FRASER,” according to the complaint, which can be found in Honolulu’s First Circuit Court.

Further, Miske’s legal complaint alleged: “Defendant Fraser violated his duty of care while operating his vehicle in a safe and proper manner by being inattentive, and failing to keep a proper lookout.”

It claimed Fraser should be responsible, along with the driver of the other car and his employer, for Caleb Miske’s pain and suffering, medical and funeral expenses, loss of past, present, and future wages, and other damages.

The defense then focused its attacked on the credibility of two key witnesses, Wayne Miller and Jacob “Jake” Smith, emphasizing their criminal pasts and their hopes to be given leniency when sentenced as a result of their cooperation with prosecutors.

Kennedy highlighted what he described as “divergent paths” taken by Miske and Miller, who were close friends as young men, although Miske was about 10 year older.

In 2001, while Miske was getting Kamaaina Termite started and beginning in business, he was working for a living, while Miller was, well, “doing what he does.”

He was later charged and convicted of the armed robbery of a Windward Oahu credit union, and was confined in a federal prison from 2005 to 2013.

When Miller was released, he resumed selling drugs, meth and cocaine, and eventually became addicted to oxycodone that was costing him $2,000 a day.

Miske, meanwhile, had grown his business, was now employing more than 100 people, and Kamaaina Termite was known for fumigating iconic buildings like the Waikiki Shell, the Blaisdell Concert Hall, Polynesian Cultural Center, and Kaumakapili Church.

Kennedy suggested crimes attributed to the Miske Enterprise by prosecutors were really carried out by a group her referred to as the Miller Enterprise, and he ticked off several drug dealers who, he alleged, made up Miller’s own independent drug organization. He described how Miller had already become a confidential FBI informant, but continued to take part in drug dealing and other crimes behind the FBI’s back.

It was a good effort, although jurors have viewed numerous exhibits, including hundreds of pages of WhatApp text messages between Miske, Smith, and others, and Miller, Smith, and others who prosecutors have named as members of the Miske Enterprise were prominent in Miske’s cell phone contact lists, and they routinely had his contact information available as well.

Kennedy also called into question the credibility of other witnesses, such as Ashley Wong, Jonathan Fraser’s girlfriend and the mother of his son, attributing sinister motives to what may well have been routine and expected inconsistencies between her statements at different points in time following Fraser’s disappearance.

Continuing another prominent thrust of the Miske defense, Kennedy praised Miske’s Kamaaina Termite and Pest Control, the oldest of Miske’s several businesses and the most widely recognized, which he repeatedly praised as a legitimate business that created jobs, paid taxes, and was generally successful.

While that may distract jurors, I doubt it will erase the vivid testimony by multiple victims of violent assaults carried out by Miske and his hired minions.

My views, of course, don’t count at this point. It’s all up to the jury. They are the ones who will have to decide whether any of the issues raised in the defense summation create “reasonable” doubt.

The court’s final jury instructions provide this guidance regarding “reasonable doubt.”

The government has the burden of proving every element of the charges beyond a reasonable doubt. If it fails to do so, you must return a not guilty verdict.

While the government’s burden of proof is a strict or heavy burden, it is not necessary that the Defendant’s guilt be proved beyond all possible doubt. It is only required that the government’s proof exclude any “reasonable doubt” concerning the Defendant’s guilt.

A reasonable doubt is a doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the Defendant is guilty.