Attorneys representing alleged racketeering kingpin Michael John Miske Jr., say their client has been held in solitary confinement in the Federal Detention Center for over 200 days, and has been told this will continue indefinitely, all without a hearing and without apparent concern for his procedural and constitutional rights.
Miske and 10 co-defendants were named in a 22-count indictment in July 2020 which includes a variety of offenses, ranging from drug trafficking and weapons offenses, to armed robbery, kidnapping and murder for hire. All but one of the defendants are also alleged to have been members or associates of an overarching racketeering conspiracy, controlled and directed by Miske, in which they each participated by committing at least two crimes.
During Miske’s extended time in solitary confinement, his attorneys say he has “been in a small cell with extremely limited human contact, restricted visits and phone calls with his family, limited access to the commissary, and little time out of his cell.” They say these conditions violate Miske’s constitutional rights, as they are affecting his health and hampering his ability to participate effectively in his own defense.
Miske’s attorneys say the extended term of solitary confinement is contrary to repeated representations made by FDC officials during a court hearing in January, when they assured Magistrate Judge Kenneth Mansfield he was to be returned to the general population within days. That did not happen. And limitations associated with being held in solitary confinement violate terms of an order issued by Mansfield at the conclusion of the January hearing, they say.
That order prohibited FDC and Federal Bureau of Prisons officials from taking any actions that interfere with Miske’s “right to the effective assistance of counsel,” required the facility to accommodate in-person contact visits and confidential telephone calls between Miske and his legal team during “all reasonable hours,” and directed them to provide Miske with the computer equipment and time (up to eight hours a day) to review and comment on a mountain of evidence collected.
Now Miske’s attorneys are heading back to court. In a 59-page motion filed in Honolulu’s U.S. District Court last week, they ask the court to revisit and clarify Mansfield’s earlier order by specifically requiring that Miske be transferred back into the general population at the detention center; providing him access to a computer to be supplied by the defense that has the evidence files and word processing software loaded onto it so he can receive and review legal documents, and respond with confidential notes to assist in his own defense; and allowing in-person contact visits with his attorneys “at all reasonable hours” as provided by law and by the prior court order.
Alternatively, the motion requests the court require Warden Estella Derr to show cause why she should not be held in contempt.
Documents attached as exhibits, including correspondence and emails, show Miske’s attorneys have repeatedly complained about what they say are violations of Mansfield’s original order, including last-minute cancellation of scheduled meetings and telephone calls with his legal team, arbitrary one-hour limits on telephone calls with his legal team and imposing conditions that seriously interfere with Miske’s ability to assist his legal team.
Warden Derr took over the top spot in the Honolulu facility in May 2020, and will complete her initial year as warden next month.
Derr has worked her way up through the ranks during 26 years with the Bureau of Prisons, starting as a secretary, and eventually serving a total of five years and two months as associate warden at two different facilities before being promoted to warden here in Honolulu, according to her LinkedIn profile. She previously served as case management coordinator at the Honolulu facility for six years after it first opened in 2001.
Problems arose immediately following Mansfield’s Jan. 15 court order, which were documented in emails from two of Miske’s attorneys.
Some of these problems could be attributed to the routine indignities of life in prison. But in a case involving a potential death sentence, they take on additional importance and constitutional relevance.
As the courts have long recognized, the prospect of the death penalty is different.
Miske’s attorneys cited a 1989 U.S. Supreme Court case to underscore the difference.
“As the Supreme Court has repeatedly emphasized, ‘the Constitution places special constraints on the procedures used to convict an accused of a capital offense and sentence him to death. The finality of the death penalty requires a ‘greater degree of reliability’ when it is imposed,’” they wrote.
Among the 17 charges against Miske are four capital crimes for which the maximum sentence is death.
On Jan. 24, San Francisco-based attorney Michael Burt wrote to Bureau of Prisons attorney Timothy Rodrigues “to document problems we are already having with FDC’s compliance with the (court’s) order.” Burt explained he was writing to Rodrigues because the attorney had appeared at the January court hearing and spoke on behalf of the detention center.
Burt had been appointed by the court as “learned counsel” to assist Miske’s defense because of his extensive experience in death penalty cases.
“Highly skilled and experienced counsel is critical at every stage of a federal death penalty proceeding, and it is important from the outset of a case that death-qualified counsel be appointed to provide representation to defendants charged with a capital crime,” according to a description of the “learned counsel” program of the federal Defender Services Office, part of the federal court system.
Burt complained that telephone calls on Jan. 20 and Jan. 21 had been arbitrarily cut off after one hour.
“This is a violation of the court’s order,” Burt wrote, explaining that he had brought the order to the attention of Unit Manager Kris Robl, who “indicated that although he was aware of the court’s order allowing calls at all reasonable times, he was too busy to allow Mr. Miske to continue the conversation beyond one hour.”
Despite this early complaint, the one-hour time limit has continued to be enforced, according to the show cause motion.
Burt also noted the detention center’s failure to provide Miske access to a computer with word processing capability, as called for by Mansfield’s order. Instead, it provided access to a computer and an electric typewriter with a tiny display for “word processing.” But the typewriter had to be plugged in, and no electrical outlet was initially available.
“I don’t think an electric typewriter, even if plugged in and made available to Miske, satisfies the letter or spirit of the Court’s order,” Burt wrote.
The memo to “show cause” restates what should be obvious: “An electric typewriter is not word processing.”
“While it is slightly better than the rubber pencil that Mr. Miske has been forced to use, in most ways it is no different from only having a pen and paper, since it still involves physical sheets of paper that counsel must scan in and cannot copy and paste any of Mr. Miske’s notes to allow them to be used in a meaningful way.”
Further, Miske was required to purchase typewriter ribbon cartridges through the detention center commissary. But at the beginning of March, he was notified that the commissary “ran out” of the ribbons, and he learned none would be available for at least a month.
Similarly, in a declaration filed in court, Miske said he had been informed he would not be able to obtain paper through the detention center, and it would instead have to be provided by his defense attorneys. Then, on March 4, all of his blank paper was seized as “contraband” during a “shakedown” of his cell, and he was “told that I couldn’t have it.”
This despite an admonition in Mansfield’s January order: “Logistical challenges, pandemic issues, or disciplinary sanctions … do not provide a basis to provide Mr. Miske anything less” than what the law requires.
Attorney Lynn Panagakos, a former federal prosecutor, sent an email to Rodrigues objecting to Miske’s hands being shackled to his waist during a contact visit with two members of the defense team in mid-January.
“This materially restricted the effectiveness of the consultation, particularly due to the complex, document intensive nature of the case … If he were in the general population, he would not be shackled,” Panagakos wrote.
But despite her objections, and email follow-ups, Miske has continued to be shackled through at least 20 visits since that time, his attorneys now say.
“I don’t think an electric typewriter, even if plugged in and made available to Miske, satisfies the letter or spirit of the Court’s order.” – Michael Burt, lawyer appointed by the court to help in Miske’s defense
The problem is further described in the pending motion: “Mr. Miske has been brought to the visitation room with shackles around his wrists that are attached to a belly chain that goes around his waist. These shackles and belly chain have remained on for the entirety of each visit. Being shackled this way results in Mr. Miske not being able to move his hands more than a few inches from his waist and makes reviewing documents or paperwork during the visits very difficult.”
“Since Mr. Miske’s hands are chained to his belly, he can’t freely pass documents back and forth with counsel nor can he flip through the pages himself. Counsel must turn pages for him and place documents on the table in front of him so that he may view them,” according to the motion.
Given the document-intensive nature of the case, which has already prompted its designation as a “complex case” requiring extended deadlines to deal with some 500 gigabytes of evidence in digital form to date, these are not minor inconveniences.
In his sworn declaration, Miske said he had not seen any other detainee in chains during the more than five months he had been held in the Special Housing Unit.
Miske has been confined in the Special Housing Unit since Nov. 2. Initially, detention center officials said he was placed in solitary confinement while he was being investigated for a suspected security violation. A month later, he was told that the investigation had been completed, and that he was set to be returned to the general population, where he previously had more privileges.
During the short period he was housed in the general population, he was in a housing unit with detainees who had work assignments requiring them to be out of their cells at various times, often for long periods. He met with his attorneys without being shackled, and he was able to use a telephone in a counselor’s office for calls with his attorneys and a court-assigned death penalty mitigation investigator, where he was able to spread out the documents being discussed.
However, for most of the time he has been in the Special Housing Unit, Miske has been locked in his cell for 24 hours a day.
“My cell consists of a bed, a toilet/sink combo, and a small desk that is welded to the bunk,” Miske wrote in his declaration. “The only times I leave my cell are for legal visits and the law library, both of which are located in similar small cells.”
“Law library” conjures up images of a library with stacks of legal resources. The reality of the law library in the Special Housing Unit is something very different.
“The law library is an empty cell with a computer and a typewriter in it,” Miske wrote. If he is working in the law library and has to use the bathroom, or retrieve a document from his cell, he must gather up all of his materials, including the ribbon from the typewriter, wait for a guard, who patrols only every 30 minutes, pass out his belongings and sanitize the room. He is then required to submit to a strip search, “squat and cough,” then dress, be put in handcuffs, have a plastic face shield put on his head, and escorted back to his cell.
Telephone calls with his defense lawyers are equally problematic. A telephone secured to a rolling cart must be brought over to his cell.
“The receiver is fed through the food slot in my cell door,” Miske said in his declaration. “The cord attaching the headset to the base of the phone is a metal cord, like you would find on a payphone and is not flexible … (and) only extends approximately 12-14 inches into my cell past the food slot.”
Miske’s cell has no chair, so in order to talk with his lawyers on the phone, he is tethered by the short phone cord and has to “crouch or squat on the floor at my door next to my toilet and lean my head against the door.”
Miske says he was advised by his attorneys to keep records of his interactions with detention center staff and officials.
His declaration describes a brief conversation with a Captain Miller on an early morning in February. Miske asked if Miller knew when he would be getting out of solitary, and Miller reportedly referred back to the hearing before Magistrate Judge Mansfield.
“When he stopped at my cell, he (Miller) said, ‘Huuuuuuu weeee. Your attorneys gave us a-lickin. We had to flex back,’” Miske wrote in his declaration.
Miske’s attorneys point out that no valid justification for keeping him in solitary confinement has been offered by FDC officials, and they point to Captain Miller’s statement as evidence that it is simply retaliation for taking their complaints to court. Indeed, when defense counsel made a Freedom of Information Act complaint for records of the disciplinary investigation that supposedly justified Miske’s initial transfer into solitary confinement, no records were produced and they were told “there are no disciplinary records on your client.”
“Retaliation against prisoners for their exercise of this (First Amendment) right is itself a constitutional violation, and prohibited as a matter of ‘clearly established law,’” Miske’s attorneys argue, quoting from a prior federal case.
The show cause motion is accompanied by a declaration by Dr. George Woods, a well-regarded specialist in neuropsychiatry, which summarizes the available scientific literature on the psychological effects of long-term solitary confinement.
Woods points to a range of psychological effects of prison isolation, including “anxiety, withdrawal, hypersensitivity, ruminations, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behavior.”
Woods reported: “By way of summary, it is my expert opinion that being housed in a SHU under the conditions described in Mr. Miske’s present motion — especially over a long period of time — can produce a number of negative psychological effects and, therefore, places prisoners at significant risk of serious psychological harm. I believe that these effects are now well understood and described in the scientific literature.”
Miske himself has reported losing 30 pounds, despite eating everything provided to him, and reported also losing “significant muscle tone and mass because I cannot exercise.” And during his brief conversation with Miller in February, Miske says he told Miller, “I’m going mental in here.”
No date has yet been set for a hearing on the motion. However, a motion seeking additional computer access for Miske’s younger brother and co-defendant, John Stancil, and a second co-defendant, Jarrin Young, is scheduled for a May 28 hearing, at which time many of these same issues regarding adequate computer access will be at issue.
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