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    Saturday, November 25, 2017-9:26:28P.M.

     

     

     

     

     

US court disqualifies Torres brothers in Ayuyu case

THE federal court has ordered the disqualification of Attorney Joaquin DLG Torres and the firm Torres Brothers LLC from representing defendant Sen. Juan M. Ayuyu in the case involving the unlawful transport of endangered Mariana fruit bats.

District Court for the NMI Chief Judge Ramona V. Manglona in her March 26 order, disqualified Joaquin Torres and his law firm from representing the defendant in the case because of a potential conflict of interest.

Manglona reasoned that the serious potential for a conflict of interest and the unacceptable risk to the integrity of the proceedings compel disqualification of Joaquin Torres, notwithstanding any waiver of conflict by the defendant.

“The court takes this action with great reluctance, given the closeness of the trial date and the expense that the defendant has no doubt incurred on retained counsel,” said Manglona.

Last Friday, Manglona had indicated her inclination to deny the waiver and disqualify the defendant counsels over a potential conflict of interest.

Assistant U.S. Attorney Garth Backe told the court of the problems stemming from the unsworn potential witness and unavoidable conflict of interest.

The court said that the potential government witness is Ralph Torres, the brother of the defendant’s lead counsel Joaquin Torres.

Joaquin and Victorino Torres told the court on Friday that the possibility of cross examining their brother, Ralph, on the witness stand presents a potential conflict.

The court noted that the government conceded that while it is concerned with the possible attorney-client relationship, family loyalty was the paramount issue.

Manglona’s order noted that the government is not planning to call Ralph to testify in its case “in chief,” but may need to call him as a rebuttal witness.

She said that even without his testimony, phone logs would show that Ralph spoke with the defendant, and then his brother Joaquin on the evening of Oct. 17, 2010.

Conflicts counsel Vicente Salas advised the court on March 25 that he concurs with the government that the possibility of Ralph Torres testifying creates a “non-waivable” conflict of interest.

Manglona stated in her order that the sequence of phone calls after Ayuyu’s flight from Rota to Saipan on Oct. 17, 2010 “raises an unacceptable risk that Joaquin may become a potential witness.”

She said that the government may introduce subscriber logs to support testimony by a Freedom Air employee that the defendant told him the box of fruit bats was for a Saipan lawyer.

“The logs show that shortly after landing on Saipan, Defendant called Ralph Torres; Ralph then called Joaquin Torres, who is a Saipan lawyer and — up until now — defendant’s lawyer,” stated Manglona’s order.

She said the prospect of jurors’ looking over at the defense table and wondering what Joaquin Torres would say if he were called to the stand “is intolerable.”

Even if he doesn’t testify, Manglona said the jurors would inevitably study his demeanor and his body language and perhaps draw improper inferences from their observations.

Such inferences, Manglona said, may “corrupt the truth-seeking mission of the proceedings by bringing into consideration evidence not properly admitted.”

Manglona acknowledged that, at this time, there is no actual conflict of interest with the Torres brothers’ representation as officers of the court.

“However, the risk that such a conflict will develop is unmistakable,” she said.

Manglona said that Joaquin Torres “has not stated that he affirmatively recalls the five-minute conversation with Ralph” on Oct. 17, 2010 and that it had nothing to do with the allegations.

She said, “Rather, he says he does not remember the phone call.”

She reasoned that although the brothers Joaquin and Ralph do not remember the content of their conversation now, “the trial may jog their memories and give rise to a claim of attorney-client privilege.”

Manglona said if the government calls Ralph Torres to rebut testimony by defense witnesses, including that of Ayuyu’s if he were called to the witness stand, “the risk of conflict hindering cross examination is real.”

In arriving at her decision to disqualify the defense counsels, Manglona noted that central to the Sixth Amendment is the right of the criminally accused to select and be represented by one’s preferred attorney.

Manglona said effective representation may be hindered by a conflict of interest involving a current or former client.

She also said that the district court has a substantial latitude in refusing waivers of conflicts of interest not only in rare cases where an actual conflict may be demonstrated before trial but in more common cases where a potential conflict of interest exists which may or may not burgeon into an actual conflict as the trial progresses.

She said the right to choose counsel is not an absolute right and it must give way to preservation of the integrity of the proceedings.

A threat to this integrity of the proceeding lies in the “unsworn witness” problem which arises when an attorney was a participant in events to be explored at trial.

Even without taking the stand, the attorney’s first-hand knowledge of the facts at trial may impair his performance as an advocate.

Senator Ayuyu’s first indictment was for conspiracy to smuggle federally protected Mariana fruits bats from Rota to Saipan two years ago — a misdemeanor. His second indictment contained seven felony charges including conspiracy to obstruct justice, witness tampering and the attempted destruction of evidence. He has denied all the charges.

Moreover, in her March 26 order, Manglona stated that the jury trial is vacated and set the status conference for April 1 at 9 a.m.

Ayuyu has between March 26 to April 1 to obtain counsel.