I should perhaps apologize in advance for another post dealing with the federal indictment of Mike Miske and ten others on a range of charges, including murder. But I’ve been following the case closely, and there is a lot going on which has not been noted by the mainstream media. So I’m trying to add to the public record.
On Tuesday, the U.S. District Court in Honolulu unsealed a set of documents concerning forensic evidence from the search of Mike Miske’s Boston Whaler “Painkiller” in 2017. The the release of these newly public documents, which were the basis for my post here on Wednesdy, came as the result of a lawsuit brought by the Civil Beat Law Center for the Public Interest earlier this year (“In re Motion to Unseal Court Records“).
The documents originated in legal actions brought by Hawaii Partners LLC beginning in 2017 which sought to have to boat returned as quickly as possible, and also tried to block the FBI from completing its forensic examination of potential evidence seized during the search of the boat. Hawaii Partners is a company that was founded and controlled by Mike Miske, and which claimed ownership of the boat. The legal wrangling over the terms of the search warrant and the release of the boat continued for a year after the Painkiller was returned to Hawaii Partners in May 2018.
But one key document–potentially the most interesting one–wasn’t among the documents made public this week, and there was no comment on its absence.
The missing document is an “ex parte” letter from government attorneys to Judge Leslie Kobayashi dated February 8, 2019. The “ex parte” designation means that it was meant to be read only by the judge, and not disclosed to the other party in the case, Hawaii Partners, or the company’s attorneys.
At the time the letter was written, the disabled boat had already been returned to Hawaii Partners, and the legal fight had turned to whether the FBI should be allowed to continue its unfinished analysis of physical items that had been removed from the boat, along with digital data it had retained.
The context of the dispute at that time can be found in an order signed by Judge Kobayashi on January 10, 2019, granting in part and denying in part a motion by Hawaii Partners to return everything taken under the authority of the search warrant. However, Judge Kobayashi asked for additional legal briefs to be filed concerning one remaining legal issue.
At that point, the government asked for permission to the ex parte letter. On February 4, 2019, Judge Kobayashi issued an order regarding the letter.
The Court will receive the Government’s ex parte letter and, after review, will determine whether the submission should remain sealed in its entirety, or whether the submission should be produced to Movant and/or filed in whole or partially redacted. The Court reminds the Government of its obligation of fair play, and notes that filing documents under seal is appropriate when the Government can demonstrate a “compelling reason” for filing the information under seal.
Although the letter was presumably submitted, it was never listed in the court docket, and the judge never issued a further ruling clarifying its status.
After the Civil Beat Law Center filed its motion asking that the sealed documents be disclosed, the government responded. In general, according to the response filed in court, it did not oppose unsealing of the documents in the case, although more time was requested in order to make any redactions thought to be necessary.
However, there was one exception.
Although the United States does not generally oppose the unsealing of filings in the…proceeding, it would oppose the unsealing of one such document. During the course of the…proceeding, the United States requested permission to make–and did make–an ex parte submission that was not provided to Hawaii Partners, LLP. That document was filed under seal on February 9, 2019. It should remain under seal for three reasons.
The government’s letter disclosed for the first time “that the criminal investigation into the murder of Jonathan Fraser is active and ongoing.”
Although Miske had already been indicted for Fraser’s murder, the superseding indictment charged Miske “with, among other things, conspiring with others to commit the kidnapping and murder of Fraser.”
The ex parte letter, the government argued, would disclose details that could undermine the ongoing investigation, including “sensitive witness and informant information.”
Then on October 22, 2020, Judge Kobayashi issued her order granting the Civil Beat Law Center’s motion to unseal the court records, in which she specifically addressed the issue of the ex parte letter.
After review of the Response, the Court construes the Government’s position as that it does not oppose unsealing the court records filed in the Underlying Actions but requests additional time to propose redactions to the documents contained in these court records; specifically, until a date in February 2021, a period of four months. The Government additionally asks to maintain the sealing of an ex parte submission filed on February 8, 2019 because it relates to an on-going criminal investigation and thus is “especially improper to make the submission public.”
But Kobayashi’s order rejected the governments position.
“The Government vaguely refers to an on-going investigation but provides no specifics,” she said in her order granting the motion to disclose. “Likewise, it refers to the need to redact certain information but provides no basis for doing so….The Government has not made a compelling showing to overcome Petitioner’s qualified right of access under the First Amendment.”
Judge Kobayashi then gave a deadline for lawyers representing any of the defendants to object to disclosure.
“If there is no opposition by the defendants…then the Clerk’s Office is DIRECTED TO UNSEAL the records…on November 23, 2020, unless otherwise directed by the court,” she ordered.
No defendant objected to disclosure, and the government did not file any further appeals of Kobayashi’s order. After some confusion, the documents were unsealed on November 24.
With just one, unexplained exception–the ex parte letter of February 8, 2019.
In an email on Wednesday, Brian Black, executive director of the Civil Beat Law Center, said he would be seeking clarification of the letter’s status.
So stay tuned. There could be more disclosure coming.
