The sheer volume of evidence undergirding the 22-count federal indictment of alleged racketeering kingpin Michael John Miske Jr. and 10 co-defendants continues to create tricky legal and practical issues.
A legal motion filed in Honolulu’s U.S. District Court last week seeks special privileges in the form of significantly greater computer access for Miske’s younger brother, John Stancil, one of those facing charges. Stancil’s attorney, Walter J. Rodby, said the special computer arrangements, not available to all detainees, are necessary to cope with the mountain of evidence.
Prosecutors have already turned over approximately 187,000 pages, more than 150,000 files, and 32 disks of audio or video recordings, comprising nearly 500 gigabytes of data, with more expected to be released in the months ahead, according to court records.
“In real world terms, one gigabyte is roughly 50,000 to 75,000 pages, which is enough paper to fill a small truck,” according to Rodby’s motion.
As a result of the volume of evidence released through discovery, the number of agencies that took part in the investigation, and number and variety of charges and defendants, the case of what prosecutors call the Miske Enterprise has already been declared “complex,” which loosens deadlines and allows additional time to prepare for trial without violating a defendant’s constitutional right to a speedy trial.
The trial of Stancil, Miske and their co-defendants is currently scheduled for September but could be delayed further.
Rodby’s motion asks that the Federal Bureau of Prisons, and administrators of the Federal Detention Center in Honolulu, be prohibited from taking actions that interfere with Stancil’s constitutional right to the effective assistance of counsel, including unreasonable restrictions on computer access necessary to review and comment on the hundreds of gigabytes of evidence turned over by prosecutors in digital form.
“In this particular case, in order to assist his counsel with the preparation of his defense of his case, Mr. Stancil must review all discovery as well as any defense-generated documents,” Rodby’s motion argues. “He also must be able to effectively document for counsel his comments about the discovery and suggestions for defense investigation. Because of the massive quantity of data, Mr. Stancil needs to utilize computer technology and word processing capability to facilitate his review and analysis of the material.”
Rodby’s motion might have been informed by a status report filed last month by San Diego attorney John C. Ellis, who serves as a national coordinating discovery attorney for the Administrative Office of the U.S. Courts and is assigned to this case. His report was filed under seal, and its contents remain publicly unavailable.
Ellis is one of five coordinating discovery attorneys who work with the courts on cases across the country. All five are criminal defense attorneys experienced in handling large amounts of data. They assist the court, and both prosecution and defense attorneys, by managing the production of discovery, assisting attorneys who likely have different levels of computer expertise, flagging problems that arise and suggesting solutions to the court.
Stancil has been housed in the general population in Honolulu’s Federal Detention Center since his arrest in July, according to Rodby’s sworn declaration. Like other detainees, he is allowed out of his cell once a day for 90 minutes. During that brief period, Stancil must wash and shower, make contact with family and friends via phone or email and exercise, leaving precious little time to continue reviewing and commenting on a growing mountain of digital evidence in the case before returning to his cell for another 22 1/2 hours.
Although Stancil is allowed to use a computer in the detention center library for two hours a week, he has not been permitted to take the disks containing the evidence files into the library.
A staff attorney for the Federal Detention Center has turned down Rodby’s request that Stancil be given additional time every day to review the case files. The detention center attorney “has indicated he is unable to allow and/or authorize Stancil’s request, for a variety of reasons,” Rodby stated in his declaration.
The day after Rodby filed his motion, the attorney for another defendant, Jarrin Young, asked to join in the request for increased computer access.
Rodby’s motion and supporting memo cite a legal manual, “Managing Digital Discovery,” on the importance of adequate computer access.
“In a case with voluminous electronic documents, consultation with the client is especially important to help the attorney prepare for trial in a timely and adequate fashion,” the manual advises. “The client’s input is needed both to assess evidence disclosed by the prosecution and to review evidence that the defense needs to produce.”
Magistrate Judge Kenneth Mansfield granted Miske’s similar request for expanded computer access on January 15. Mansfield’s order requires the detention center to allow in-person contact visits between Miske and his legal team, as well as confidential telephone calls with an attorney and investigator assigned specifically to address death penalty issues, “at all reasonable hours.” In addition, Mansfield ordered officials to provide Miske up to eight hours a day to use one of the computers in the detention center’s library along with a hard drive containing the digital evidence files, or to provide access to a non-internet connected tablet or laptop containing the discovery materials and word processing capability.
However, in explaining his decision, Mansfield stressed that Miske not only has to deal with the mass of data, but is charged with multiple capital crimes.
“When a defendant’s life is at stake, the Court should be particularly sensitive to insure that every safeguard is observed,” Mansfield wrote, citing legal precedents. “Thus, the Court must be vigilant in protecting Mr. Miske’s right to adequate assistance of counsel and meaningful access to the court.”
“Although this substantial amount of discovery alone might not ordinarily warrant the relief sought, given that Mr. Miske is subject to capital punishment, the Court finds the relief sought appropriate,” Mansfield ruled.
This comment suggests obtaining the requested computer access may not be a legal slam dunk for Stancil and Young, as neither are charged with offenses involving a potential death penalty, although both face possible life sentences.
Miske, along with Stancil, Young, and seven co-defendants were charged last year with being members or associates who participated in a racketeering conspiracy controlled and directed by Miske since the late 1990s. According to prosecutors, the racketeering conspiracy “included a wide variety of criminal activities” such as murder, kidnapping, arson, armed robbery, murder-for-hire, drug trafficking, fraud, money laundering, obstruction of justice, and more. In addition to the overarching racketeering conspiracy charge, each of the defendants is also charged with one or more specific criminal acts.
One additional defendant, now known as Michael Buntenbah Malone after a legal name change, is not charged with being part of the overall racketeering conspiracy, but faces charges of conspiring to traffic in cocaine and other controlled substances, and to commit assault in aid of racketeering.
The court has ordered the warden and “independent counsel” for the Federal Detention Center, along with prosecutors, to meet with Rodby this week by telephone or video “in an effort to resolve or limit the issues raised.”
A hearing on Stancil’s motion has been set for 10 a.m. on May 28.
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