In the realm of sports, it’s often said the best defense is a good offense.

Now attorneys representing former Honolulu business owner Michael John Miske Jr. have served notice they intend to follow that playbook and go on the offensive when his case goes to trial next year.

Miske is accused of controlling and directing a long-running and violent racketeering conspiracy that engaged in a wide range of criminal activities, including murder and murder-for-hire, kidnapping, arson, armed robbery, drug trafficking, fraud and money laundering.

The trial of Miske and seven remaining defendants is scheduled to begin in April and last several months.

Miske’s legal team, headed by co-counsel Thomas Otake and Lynn Panagakos, have clearly signaled they intend to come out swinging.

“We’re fighting, because they are trying to put this man away for life,” Panagakos told Magistrate Judge Kenneth Mansfield during a court hearing in May.

On The Offensive

Miske’s legal strategy, which has been on display in a series of legal filings and oral arguments over much of the past year, can be summed up in three words: Attack. Attack. Attack.

His attorneys intend to turn the tables and put the government and its yearslong investigation on trial, attacking the integrity and reliability of the government’s entire investigation, including what they say is the government’s creation of a fictional “Miske Enterprise” that, according to Panagakos, never really existed.

They have already been targeting procedural and technical flaws in the government’s handling of the case before trial, attacking prosecutors for allegedly “slow-walking” required disclosure of evidence in the process of discovery which, they say, has violated Miske’s Fifth Amendment right to due process, and Sixth Amendment right to confront and cross-examine his accusers. This has clearly preserved the issue for a possible future appeal.

They will attack the credibility of the government’s witnesses, especially those former Miske associates and co-defendants who have already pleaded guilty and are expected to testify against their former boss. The defense will try to paint them as liars who will say whatever is necessary to save their own skins, and will accuse them of committing many of the crimes which, they say, the government wrongly attributes to their client and the so-called Miske Enterprise.

And they will seek to exploit every inconsistency between the stories told by different witnesses, or stories that change over time, and will attempt to use these cherry-picked examples to plant seeds of doubt in the minds of jurors.

“The question (for jurors) isn’t whether you believe these witnesses, it’s whether you believe them beyond a reasonable doubt,” according to former criminal defense attorney Ken Lawson, co-director of the Hawaii Innocence Project and a faculty specialist at the University of Hawaii’s William S. Richardson Law School.

It boils down to this. Miske’s attorneys will argue that the whole idea of a broad and overarching organization running a racketeering conspiracy with their client in charge, what the government refers to as the Miske Enterprise, is a fiction that exists only in the minds of the prosecution. They will describe Miske as just a regular guy who went to the office, stopped at Starbucks, went to the gym, went shopping, and enjoyed hanging out with his girlfriend.

If there was a conspiracy, they say, Miske was not part of it. And if crimes were committed, these criminal acts were done by others unconnected to Miske or his businesses, often by the same criminals who will now be called as witnesses for the prosecution.

A Difficult Case To Defend

Defending Miske, the former owner of Kamaaina Termite and Pest Control, M Nightclub, and other businesses, isn’t going  to be easy.

First, prosecutors are sitting on a vast amount of incriminating evidence.

There are investigative reports and witness statements from four federal investigations, the earliest from about 1998 to 2000, and continuing up through Miske’s indictment in 2019, followed by superseding indictments in 2020 and 2021.

There are phone and email records from multiple accounts turned over by the carriers. There are surveillance records, audio and video, gathered over several years, including years of 24/7 surveillance, court records show.

There are business records seized from Miske’s various businesses, and from several of his residences, along with 292,000 pages of accounting records produced by Miske’s accountant, Tricia Castro, who pleaded guilty in June 2021 to conspiracy to defraud the United States and conspiracy to commit bank fraud.

Initially the digital files, including scanned documents and surveillance images, were counted in gigabytes.

By the time of a March 11 court hearing, Panagakos said prosecutors had turned over some 80 terabytes of digital data and some 2 million pages of documents. Despite the sheer volume of evidence, Panagakos said prosecutors had identified additional records that had not yet been received.

And the disclosure of evidence continues. William Shipley Jr., attorney for co-defendant Jarrin Young, disclosed in an Aug. 10 motion that the government released two more “massive” batches of evidence in June.

Shipley, quoting San Diego attorney John C. Ellis, who is the court-appointed coordinating discovery attorney managing the large volume of evidence in this case, said the first batch contained 255 gigabytes of data, consisting of 408,323 pages of documents, 42 hours of audio, 32 hours of video, and forensic reports of five digital devices and one social media account.

Then on June 30, an additional 6.32 terabytes was released. This included another 151,331 pages of documents, nine hours of audio, 20 hours of video, over 17,000 digital images, and forensic reports on another nine “digital devices.”

The bulk of this latest release reportedly consists of surveillance video from a “pole camera” outside the Kamaaina Termite office on Queen Street in downtown Honolulu. Shipley said the video supposedly comprises “more than 16 years-worth of video surveillance” apparently gathered by federal authorities in a series of investigations.

This is by far the most evidence produced during discovery in any case ever filed in Hawaii’s U.S. District Court, and more than any case ever handled by Ellis, the coordinating discovery attorney who specializes in managing large volumes of discovery in cases throughout the country.

In addition to the vast amount of physical and digital evidence, there are at least 11 people linked to the Miske organization who have pleaded guilty and are now cooperating with prosecutors, including five of the original 10 co-defendants indicted along with Miske.

Most of them have admitted being members, associates or employees of the Miske Enterprise, the same organization Miske’s attorneys are attempting to dismiss as a fiction.

Miske’s RICO Problem

A third complicating factor for defense lawyers is the racketeering conspiracy charge, an offense under RICO, the Racketeer Influenced and Corrupt Organizations Act. It is the first charge contained in the 22-count 2nd Superseding Indictment of Miske and his co-defendants handed down by a federal grand jury a year ago.

The federal RICO law was passed in 1970 specifically to give federal prosecutors a crucial tool in taking down traditional organized crime families. Before RICO was passed, organized crime figures had to be charged and convicted of specific crimes. This made it difficult or impossible to prosecute high level Mafia bosses, who were well insulated from the acts of their street-level soldiers.

RICO loosens the rules of evidence by allowing hearsay evidence to be used to convict those higher up in the conspiracy.

Any statement of a co-conspirator can be used against others in RICO cases, contrary to the normal rules of evidence in other criminal cases.

Further, RICO focuses on organizations or criminal enterprises, rather than on individuals, again stripping away protections previously enjoyed by those at the top of criminal organizations.

A 2021 RICO primer published by the U.S. Sentencing Commission described the impact of this approach:

Putting The Government On Trial

The more than 2 million pages of documents disclosed by the government during the discovery process may make conviction of the former owner of the M Nightclub and Kamaaina Termite and Pest Control appear to be a slam dunk, but the sheer mass of evidence creates opportunities, as well as dangers, for Miske’s lawyers.

Just as the mountain of data provides lots of fuel for the government’s case, combing through it will necessarily reveal numerous examples of contradictory evidence, inconsistent statements by and between witnesses, suggestions that witnesses lied, possible suspects other than Miske, along with motives at odds with the government’s narrative of the Miske Enterprise.

In a telephone interview earlier this year, Lawson said going on the offensive is exactly what he would do under similar circumstances.

“When you’re involved in a conspiracy case and have a bunch of informants coming at your client, I would put the government on trial,” according to the former criminal defense attorney.

“Jurors have a sense of fundamental fairness inside of them,” and they are predisposed to distrust and dislike informants, Lawson said.

“In any good gangster movie, no one roots for the snitch,” he added. “Why is that? Because that’s how the story’s being told.”

“Of course, criminals don’t hang out with priests and nuns, they hang out with other criminals,” Lawson said, so prosecutors will buttress the testimony of former Miske associates with corroborating evidence rather than relying on their words alone.

Prosecutors can turn to cellphone records, emails, text messages, location data, surveillance photos or recorded conversations, bank records, documents and other types of objective evidence to make connections and support witness testimony. The sum of all these parts is stronger and more persuasive than the individual elements.

“The only defense you really have is whether the government is being fair, with a level playing field, or are they being unfair in the way they are prosecuting these people?” Lawson said.

By offering deals to defendants in exchange for their testimony, prosecutors will be relying on testimony from some very evil people who have done a lot of harm and who are going to get off easy just by switching sides and becoming a snitch, Lawson said.

And to the extent defense attorneys are able to discredit cooperating witnesses as liars, confront them with their own criminal behavior, catch them making contradictory statements or simply paint them as unlikable people, they can potentially plant doubts in the minds of jurors.

Panagakos, who spent 13 years as a trial attorney for the Department of Justice before becoming a criminal defense lawyer, has left little doubt that she will be prepared with specific examples that could, at minimum, cast doubt on key prosecution themes.

The courtroom battle ultimately gets down to whether prosecutors or defense attorneys are able to control the narrative by creating the best story, Lawson said.

“The real trial comes down to who can marshall the best story with the facts of the case,” Lawson said. “In any good story, there’s the good guy and the bad guy.”

“And as a defense attorney, you want to make the government, and its witnesses, the bad guys. You try to create a story so that the jury doesn’t like what the government is doing.”