Miske's defense rests after raising doubts about crime boss's alleged involvement in conspiracy

Defense attorneys for Michael Miske rested their case Tuesday after nearly three weeks of presenting evidence aimed at distancing the alleged racketeer leader from the crimes he faces.

Much of their questioning focused on alternative explanations for the disappearance of Johnathan Fraser, whom prosecutors accuse Miske of conspiring to kidnap and kill in 2016.

Through a series of law enforcement experts and evidence analysts, Miske's defense attempted to highlight the lack of forensic evidence linking Miske to Fraser's last known location as well as to leads investigators followed after his disappearance, including an alleged sighting of Fraser after he was last seen by his relatives. Fraser's body has never been found.

Miske is charged with 16 counts, the most serious of which include murder in connection with racketeering and conspiracy to commit murder resulting in death in connection with Fraser's killing. Both counts carry a mandatory minimum sentence of life in prison if convicted. He has pleaded not guilty to all counts.

Opposing theories

Prosecutors say Miske arranged for Fraser, 21, to be kidnapped from the Hawaii Kai condo where he lived with his girlfriend and Miske’s stepdaughter, Delia Fabro-Miske, by associates and ordered him killed and his body dumped at sea. Several government witnesses testified that Miske held a grudge against Fraser because he accused him of causing a car crash that injured Fraser and Miske’s son, Caleb. Caleb died of his injuries four months later.

Witnesses said that despite evidence showing that it was in fact Caleb who was driving on the day of the accident, Miske was determined to convince people that Fraser was driving and became angry with anyone who said otherwise.

Miske's defense tried to counter that theory with one of its witnesses, Jill Slade, who worked as a head nurse at Queen's Medical Center on the floor where Caleb and Fraser were hospitalized after their accident in November 2015.

Defence lawyer Michael Kennedy asked Slade if she recalled any animosity between Miske's family and Fraser's while the two young men were in hospital.

“Nothing unusual happened,” Slade testified.

Kennedy also called Josiah Roloff, a digital forensics expert who analyzed Miske's movements on the day Fraser disappeared, July 30, 2016, using cellphone location data.

Kennedy showed a map of Oahu showing the cell towers Miske's phone connected to during that day.

The phone failed to connect to any cell towers between 4:15 a.m. and 1:06 p.m., possibly because it was turned off, Kennedy said. Then, at 1:06 p.m., it emitted a signal from a tower just east of Honolulu and later in the afternoon in downtown Honolulu, indicating the phone was moving toward the west side of the island, he said.

Around 8:50 p.m. it was transmitted from a tower near H-1, showing movement toward Kaneohe, and later, between 10:50 p.m. and 11:23 p.m., it connected to a cell tower in the Kailua area.

But the phone “never connected to a tower in the Hawaii Kai area for the entire day, did it?” Kennedy asked.

“That’s true,” Roloff said.

On cross-examination, prosecutors pointed out that the wireless carrier, AT&T, does not check timestamps of cell tower pings for data transactions that are not billed to the customer. They also said the FBI considers AT&T's non-billable data transactions unreliable for tracing cell site connections.

In addition to trying to place Miske far from Fraser's Hawaii Kai apartment at the time of her disappearance, defense attorneys also tried to sow doubt among jurors about the prosecutor's timeline of her disappearance.

Fraser's girlfriend at the time, Ashley Wong, who testified for the government, said she went on a spa day with Miske's stepdaughter, who is also his former co-defendant, on the morning of July 30, 2016. She testified that Fraser did not respond to her texts and calls all day starting at 9 a.m., which was unusual for him.

But a defense witness, FBI agent Scott Bakken, testified that he interviewed a former classmate of Fraser's who said he saw Fraser at the Windward City Mall between 5:30 p.m. and 6 p.m. on July 30, 2016, sitting on a sidewalk between a Baskin-Robbins and an L&L Hawaiian Barbecue.

“He seemed fine,” his classmate, Adrian Tam, wrote in a statement dated Aug. 1, 2016, that was presented to the jury.

During cross-examination, prosecutors asked Bakken if he knew there had been no confirmed sightings of Fraser since July 30, 2016.

“I'm aware of that, yes,” Bakken said.

Prosecutors also noted that Tam appeared unsure in his written statement and wrote that he saw Fraser “on Saturday (if I remember that date correctly).”

Miske did not testify

Miske remained undecided until late Monday as to whether he would testify, but ultimately chose not to.

Ken Lawson, co-director of the Hawaii Innocence Project, said it can be difficult for defense attorneys to decide whether to advise their clients to testify because both options have pros and cons. Ultimately, the Fifth Amendment, which protects a person from self-incrimination, allows defendants to waive their right to testify.

In advising their clients, attorneys must consider the possibility that some jurors may think that a defendant's failure to testify is frowned upon because they assume an innocent person would take the stand, Lawson said. On the other hand, it's difficult to predict how a defendant will be perceived if he or she testifies, and jurors may have a hard time believing the testimony, especially if the person faces serious charges and a lengthy sentence.

“As a lawyer, you're between a rock and a hard place,” he said.

In a complex federal conspiracy case like this one, it may be wiser for a client to avoid the risk of testifying and rely on the government's burden of proving the charges beyond a reasonable doubt, Lawson said.

The court will be in recess until July 11, when the government is scheduled to present its closing arguments. The defense's closing arguments are scheduled for July 12, and the jury is expected to begin deliberations on July 15.