 Professor Lawson, I bet you guys probably couldn't wait just like I cannot wait until we get the next episode and along with Lawson. I'm just joking. So today we're going to be talking a little bit about the misci case because it's kind of been in the news a little bit. There's been a lot of news lately with the primary elections going on here in Hawaii and other stuff going on, the COVID pandemic. So, you know, this has been in a little news, this being the misci case. And what the latest news is that he's seeking to be released on home incarceration. In other words, he's seeking bail. And so part of the, you know, what I want to tell you about, at least with respect to this case is give you a little information. What does the judge consider when he or she is determining whether or not a federal defendant should be granted pre-trial release or granted bail. All right. And so I'm going to show you a few slides. We may not go the full time today because this really, you know, it's not going to take long to talk about. But let's get to it. All right. So we can go to our first slide. So bail, people say you have a right to bail. And to, you know, that's partially true. But here's where we get it from. Eighth Amendment. The Eighth Amendment to your Constitution and my Constitution. The United States Constitution says, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Now, Miski may end up arguing the Eighth Amendment for two reasons. One, bail. And two, the death penalty is normally challenged through the Eighth Amendment. You see that part up there on that slide that says, nor a cruel and unusual punishment inflicted. If you ever see people challenging the death penalty, it's based on that part of the Eighth Amendment and the 14th Amendment. But I don't want to give you a common law class today. I want to talk about bail today. But so excessive bail shall not be required. And so now what Miski is arguing is, look, judge, the government wants you to detain me on this indictment, what indictment? This recall indictment where the possible penalty could be death because he's charged with murder for hire. And again, the government is seeking the death penalty. If you go back to one of my last videos, a couple of weeks ago, we did, I did a talk about this or a class on this, where I told you that Bill Barr has to be the one that gives the local U.S. attorney and our local U.S. attorney here is Kenji Price. Bill Barr, the United States Attorney General, has to say to our local U.S. attorney Kenji Price, go ahead, you can institute the death penalty in this case. So, but anyway, so that's the possible penalty that Miski's facing is indictment. But Miski's saying, look, hey, you know, I haven't been convicted of anything yet. And out of the Eighth Amendment, I'm entitled to bail. And right now the government is saying, judge, that you shouldn't even set a bill. I should not get pre-trial release. I should not be allowed out because of my indictment and because of the serious nature of my indictment. And so I think it's unconstitutional and I think I'm entitled to bail. Let's go to our next slide. Miski's going to argue, right? And so the course, look at this, what is the purpose of bail? And so there's a lot of, it's so much to this. Some of you may know about the Bill Reform Act that's been going around, right? It's been a big political issue, bail reform. And what bail reform is talking about is right now bail is used to hold pre-trial detainees. Sometimes it's excessive, sometimes it could just be for a misdemeanor. Let's say that you're here in Hawaii and you get arrested for, let's say, disorderly conduct and open flask, right? Let's say that you may not have that much money. You live paycheck to paycheck and you get arrested for being out because of the COVID pandemic. You just been tired. You just can't take being in the house anymore. So you go out, you have your bottle of Boone's Farm Wine or my favorite, Thunderbird. So you got your bottle of Thunderbird, open flask, and an officer comes by. What's that you're drinking and you say, Thunderbird, what's the word Thunderbird? I'm like, hey, man, you can't have this out here in the open flask and you start cursing the cop out. So you get arrested for having an open flask, alcohol, container, whatever, and disorderly conduct for cussing the cop out. So now you get arrested, put in jail, and they say your bond is $1,000 and you can't make that bond. So you have to sit and wait until your trial and it could be three or four months down the line. And so Bellary Farm says, again, so you sit in jail for 90 days on charges were more than likely, even if you get convicted, you end up getting probation. And so a lot of people in Bellary Farm are saying, look, you know, one, you're doing, you're punishing a person on the front end, i.e. before they even been convicted. They're serving time in jail for offenses to work, even if they were convicted, they probably wouldn't even get jail time anyway. And so what is the purpose of Bell? Bell is to make sure that you will appear in court and it doesn't take money a lot of times, right? And so what has to happen is the prosecutor has to be able to demonstrate to the court by the promise of the evidence. Why Bell should be set? Why should my bill be $1,000 and I'm unemployed. So the judge have to look at it, look, what's the charge? Disorderly conduct and open flans. And you're asking, and Mr. Prosecutor, you're asking for $1,000 bond? Yeah, I am. You're honored because he cussed out a cop. And he's walking down the street with a bottle of open Thunderbird. What's the word? So anyway, and what the defense is arguing is, look, that's unconstitutional, right? The only purpose of Bell. And again, as you can see what says presence of trial, the only purpose of the bill is to make sure that the person will come back to it. Not the only purpose, but the court found in this case that I have up on the slide stack versus boil, right? This is 1951. This is how long, right? The court found that the defendant's bill cannot be set higher than the amount that is reasonably likely to ensure the defendant's presence at trial. And so if I'm sitting in the court with an open flash charge and cussing out a cop disorderly conduct, and I'm saying, judge, here's my residence, here's my house. I'll be back in court. I don't need you to set a thousand. I can't make $1,000. And so the judge could say, you know what? There's no evidence that he won't show back up in court. So I'm gonna grant what they call an OR bond, right? You just sign out, you promise to the court by signing that you will return to court. So there's a lot of bill reform going on throughout the United States. And it actually, the study show, people say, well, you know, you should set a bond because if you let these people out, they're going to be out to commit more crimes, etc. And the study show in those states that have instituted bill reform to where there's no cash money bill, that the crime rate has not risen, the crime rate has not went up, and people have been shown up to court just as much as they did before. So it's really not, it really does work, the bill reform. And it saves taxpayers a lot of money because those 90 days I had to sit in jail waiting on my trial for open flask and disorderly conduct, the taxpayers is paying a ton of money for each day that I'm sitting in jail. And we're talking hundreds of thousands of dollars just to hold me in there for 90 days. All right, so let's go to the next slide. And we have remembered that the previous slide was, you had to be a bill has to be set to where you can show that the person is going to come to trial. And it can't be excessive. If I can demonstrate to the court that I'm, I'm not going to flee and I'm going to be there. Then you don't have to set a money bill. Now this one, the second part is what they call preventive detentions right what does that mean law so what's preventing the detention. That's when somebody denied bail because the court fears that the q's is released, they will be a danger to the community. Right. And so Congress authorized this and Congress said, look, judge, if you find that a person in front of you, if you give them bail as such a nuisance, even if they haven't been convicted that because they're so dangerous. If you release them back in the community, right, they could be a danger to the community, then you can deny them bail. Now, go back to Catherine K law house case. Some of you guys may not remember this but so let me refresh your recollection. Remember Catherine had been indicted. She has several times but she had been indicted each time she was out. Remember the firefighter that the guy from the big island they claim she was having an affair with and some of the credit cards. Remember grandma's money was was being used by Catherine to pay for hotels and stuff on the big island and over here and this and for flights for this. Some type of assistant fire chief or whatever you know what I'm talking about. Catherine is out on bond and she's been indicted. She's already been indicted. This guy is getting called to the grand jury remember that. And so she's like talking to him and convincing him to go to the grand jury and lie in other words why she's out on bond. She's still committing crimes. And she ended up getting charged for that. He ended up in fact the guy went this this knucklehead. I have no idea why he would do this. He actually did lie and got caught lying. And so then he got charged and he squirreled on Catherine and said basically you know she maybe when she's out on bond still wreaking havoc. Right. So neat. So again, the court is concerned if we release you out on bond. If we give you bail. Are you going to be a danger to the community. Now, what. So what the government is arguing is look this guy is facing a death penalty. This guy miski he was involved in what we believe was a murder for hire he was been involved in drug conspiracies judge. There've been assaults and stuff like that from his past. We believe if you give him a bond. He's going he's going to go out and try to either hurt witnesses or intimidate witnesses, or go back and to raise money for his criminal enterprise or continue to engage in his criminal enterprise. He's going to continue to engage in a legal conduct. And so we believe that he's a danger to community. And based on the belly, based on our bill reform act of 1984. We should hold him now this this case, the reason why. And so this happened to this guy named Solano right he was a crime boss from New York. And Solano was held, sort of like miski right with no bail and the government said look we're not going to give him any bail and Salerno argued, go back to it. Can you go back to that slide where we showed the eighth amendment. So Salerno argued look. He said judge. You see what says he said judge look in 1984. This is Salerno arguing. He said Congress Congress passed this law judge in 1984 talking about that I can be held if they if the government thinks that somehow I'm a danger to the community. That's unconstitutional. That's against the law and the judge like why you say it's against the law will violate what the eighth amendment excessive bail. Right it's excessive in fact you have to give me some type of bail and to hold me without bail just because you're claiming I'm danger to the community is it's unconstitutional. Now Salerno was an argument, his lawyer was arguing it for him but that was arguing. So went all the way to United States Supreme Court. Because what Salerno's arguing. Can we go back to that preventive detention slide real quick. So what Salerno's lawyer is arguing is look. This very format the same one is holding miski. Right, but the Salerno argue this back in 1987 he said that is uncut that act is not constitutional. The eighth amendment says you got to give me bail. The Supreme Court say there's no we don't have to give you bail. That's not what the eighth amendment means it just says no excessive bail doesn't mean that we can't hold you. The court held that only limitations imposed by the bail clauses that the government, the government's proposed conditions of release of detention not be excessive in light of the perceived evil. What, what does that mean awesome what they're saying is look. The government can show that that if they let you out you're going to be such a janitor to the community. Then holding with no bail doesn't violate the eighth amendment. See that last sentence in there was says the court held that the only limitation imposed by the bail clause is that the government's proposed conditions of release of detention, not be excessive. In light of what in light of the perceived evil what's the perceived evil in light of the stuff you can do if we let you out. Right, and so what the government has to show. And you know why I'm doing this show, I think today. I know today is August 11 and I think miski is having his detention hearing either why where I'm actually taping the show. And so I don't know what the outcome is going to be. You want me to guess, I will guess the judge is going to hold him. And that grant him a bail, because of the seriousness of the offense and the fact that it. The penalty is death. Right. And so the question could be, well, I believe that you know the fact is facing death penalty, you have means and monies to escape and you may not come back to court. Right that's the remember that's the first part that we talked about the part that says you know bail should should be said on you know to make sure that you can assure the appearance of the defendant. And the second one is this if we let you out so we know you're going to come back to court. Right we knew cat killer I was going to come back and make a court appearances, but why you out is you're going to be out there committing crimes. Right, and if that's true, we're going to hold you. And so, again, going back to it, I think the court may. I think the course my guess is of course going to hold him without granting bail. But let's go to the next slide. Because what does the court look at right so what what does what does the judge have to look at right. We must consider following factors and determining whether conditions release can be fashioned which will reasonably assure community safety. See that the two things we just talked about. Oh, community safety and assure. Can you put the whole slide up there for me real quick. Because I want I want our students to focus on this real quick. So, the release can be fashioned which will reasonably assure community safety and what the defense apprentice so miss if we let you out, will the community be safe. And if I let you out, even though you're facing a death on the, will you come back to court. What is the judge have to look at the nature and circumstances of the offense is charged. Okay, recall conspiracy, right drug conspiracy conspiracy to commit murder for hire and murder. Right. Now what's the evidence against the person, the judge has to look at that how much evidence that you got against it. And the third one the history and cast, you know, the history and character of the person and the nature and citizens are the danger to any person or community that will be posed by the person's release. You know, so the judges look at all those factors. Okay, so what does the judge do he has to wait. They call that is what's called in the legal profession preponderance of the evidence. There you go with that bush, the BS again, what does that mean preponderance just means more likely than not. So whenever you're watching like Perry Mason or you're watching some of your crime shows, and you hear the parts of the judge, they have improved Bob, you have heard reasonable doubt they've improved me on a reasonable doubt. Right. That's not like that's reasonable doubts the highest legal standard legal burden you have preponderance is another standard. Right. And so preponderance of the evidence just means more likely than not 51% that fit if I can show you judge this fit if the scale just tips a little bit in this favor that's preponderance. So I had to show I being a prosecution had to show my policy of the evidence that that basically either miss is going to be a danger to the community, or that if you release him on bond he's not going to appear. And so that that's what the hearing is about so they had to go down and argue and miss he's going to put on some evidence in fact. Let's go to the next slide. What's is it what's miss key's argument. And so miss he said look put me on home confinement. In fact what miss he says in his in his families by his lawyers is send me home, put an electric monitoring thing on my ankle, you'll know where I'm at at all times. And then judge at my own expense we can put cameras outside of my residence at every exit so that you know that that the probation department, who can monitor me 24 seven will know I'm not leaving. And they'll know who's coming who's gone. And he's also saying I will not have access to social media, or anything like that. So judge if you, if you do that. And we'll go to the next slide real quick. And so that's what he's asking for right he's asking for home and can find it. And so, part of what his argument is this. He says that look I got strong community ties and so in his motion he says that I have businesses here that legitimate businesses I have strong community ties. I have family, I've been here all my life. So I'm not a risk to leave, or a fleet of jurisdiction because I'm so tied to the community. He said, miss he says I have lack of recent convictions I have some convictions is what miss he's arguing. Right. I haven't done anything I've been a good boy the last few years. Now there's one case of assault is still pending from one of his bar room bras but yet, but no recent convictions. So that's another reason judge for you to let me out. Now, you can go ahead and put me back up on the screen real quick. He's also saying this. I've been knowing here's what miski is his lawyer just saying look we've been knowing y'all been investigating me. This is miski talking right through his lawyers. Look, I've been knowing y'all been investigating me for years. I knew about the subpoenas to my bank for my bank records. I didn't run. I knew y'all was investigating me for dealing drugs. I didn't run. I didn't flee. I could have left. In fact, I kind of knew you guys were eventually going to invite me that's why I'd hired lawyers long time ago. And I still didn't run. And even during the investigation, I didn't threaten no witnesses. I didn't kill, you know, kill no witnesses. I didn't, I didn't do anything. And so because I haven't gotten any trouble over the last few years, because I haven't started any witnesses, because also y'all know that. That I knew I was being investigated and still didn't run. I'm not a flight risk. And because I haven't hurt anybody or threatened anybody, I'm not a danger to the community. And I haven't committed any recent crimes. And so I said, on top of that, we got this COVID-19 pandemic, and I have a right to see my lawyers and I have a lawyer in California. Let's back up anytime you're charged with death penalty and federal court, and you have lawyers who've never tried a death case. You have to be death certified death penalty certified because it's so complicated. I was able to try cases in Ohio, death penalty cases, but because Hawaii didn't have any death penalty cases, I don't know of any lawyer here in Hawaii who certified to do it. And so they had to find one from California. So now miski has this lawyer, court appointed lawyer from California, simply to monitor the death part of his case. And the lawyer says, look, I need to be able to meet with my client one-on-one because of the COVID pandemic, seeing him on Zoom meetings, like we're doing this, denies him his right to counsel. And if counsel has to go into the Federal Detention Center and meet with their client, local counsel, Tommy Otaki and their other sister, he has two attorneys. You have to go into the Federal Detention Center where there's already been some COVID cases that have been reported. Coming from the Federal Detention Center, you're putting the lawyers at risk. Wouldn't it be easier, and since I have a six minute right, right? Remember the six million United States Constitution says what? You have a right to effective assistance to counsel. And my counsel can be effective if they can't come in and see me because of the COVID pandemic. They can only be effective if I can meet with them, strategize with them, talk about my case and stuff like that, face to face. And I can't do that in this Federal Detention Center through glass and I can't do it effectively through Zoom. I can't look at papers and exchange documents with my lawyers or sit down and write out stuff and go over strategy with my lawyers. And that is right. I mean, as a lawyer, when I practice, I mean meeting face to face with clients, even if I went to the jail to sit down face to face with them and be able to talk with them is extremely important. And that's Miski's argument on why he should be released. And all I can tell you is this, as I sign off here, is that again, this is my guess. I don't think the judge is going to release him because one, there's a lot more evidence, you know, let me back up. Miski's arguing, look, part of the part of the charges is the IRS said that I was using my, what is that, the exterminating business. I can't remember the name. Yeah, no, he has this exterminating business. Can my line of extermination, something like that, right? And the IRS has claimed and judged that this is all an illegal business that I was using as a front to commit my racketeering crimes. And he had, and so Miski has hired a IRS expert from our IRS agent expert who would provide a testimony saying, look, I look at all the tax records and there's nothing really unusual about these records. I can see it's a legitimate business. It's not being used as a front. And so Miski's argument in his, in his motion for bond is the government's case against me with respect to this recall is weak. They're claiming that I'm using these legitimate businesses as fronts and I have an IRS and ex IRS specialist telling you judge expert that there's nothing wrong with my taxes. I'm not using it as a tax front to conduct illegal activities. And because the government's case is weak. That's another reason why should be let out on bond. Right now, again, I still don't think the judge is going to do it because I think the murder charge and the fact that the penalty, the possible penalty is death. A lot of courts are going to refrain from granting bond and bail in this kind of case, because other seriousness of the offense and the fact that there may be other evidence. Like other witnesses who have now came forward and basically testified against Miski about his involvement in drugs and in the murder for hire scheme. And so with all that, all I have to say is I don't think the judge is going to let him out. If he did, he'd be in a judge. I'd be shocked. But I at least want to let you kind of know what happens at these bond hearings, right. It's just not that the court just sits back and says, okay, let me flip a coin. Let me flip a coin and determine whether or not I'm going to let this defending out on bond that court has to go through certain factors and why those factors and what those factors are. So again, until next week, hey, this was a law with the law law Lawson. I don't know what I'm going to talk about next week yet but have you know this is Hawaii man any kind anything come up. Like this COVID pandemic, and some of these goofy rules that that that the kooky mare. I know and some of these other guys in our leadership is coming up with all these rules fair. Are they legal. Maybe we should talk about that. Can you challenge some of these rules, because when you say I'm a shut down all the bars, but I'm going to leave open restaurants to serve alcohol till 10. Is that making it I'm gonna shut down all the beaches and parks but I'm gonna leave open all the gyms, even though the gyms are inside. I'm a close tennis courts and swimming pools that leave gyms open. And if you want to challenge that can you challenge it. Do the rules make sense. Do they have to make sense in order for you to challenge it. Is it the law. Maybe that's what we'll talk about next week but until then I'm out. See you all later.