ATTORNEY Brien Sers Nicholas has accused the Office of the Attorney General’s criminal division of vindictiveness and bad faith in the way it is treating his 17-year-old client who was charged with sexual assault and other charges in adult court.
Nicholas represents Kenneth Thomas Blas Kaipat who was charged with three counts of sexual assault in the first degree, two counts of sexual assault in the second degree, aggravated assault and battery, assault with a dangerous weapon, strangulation, and burglary.
The alleged incident happened in a San Vicente home on June 2, 2019.
The charges were filed following the Superior Court’s order granting the government’s request to transfer the case from the juvenile court to the adult court.
In Nicholas’ motion for reduction and bail modification, he stated that his client was arrested pursuant to the decision by Presiding Judge Roberto C. Naraja to waive juvenile jurisdiction over the defendant.
“[In] what can only be described as bad faith [of] the highest order given the waiver order, the government attorney sought and obtained yet another $250,000 arrest warrant from the court that resulted in the arrest of the defendant,” Nicholas said.
He said Judge Naraja’s waiver order stated the following: “For the purposes of an efficient and uninterrupted transition, the bail order and bail conditions shall remain, until the adult court determines otherwise.”
But Nicholas said the government lawyer beat the current judge to the “punch” and obtained the $250,000 arrest warrant.
“Sadly, this does not come as a surprise to the defendant or the defense counsel given [that] the record of this case before the juvenile court [has] exposed the dangerous vindictiveness against the defendant, a minor to say the least,” Nicholas said.
“The arrest of the defendant…in light of the foregoing discussion, leaves no further doubt about the existence of the dangerous vindictiveness being exhibited by the government,” he reiterated.
He requested the court to reduce the bail amount of Kaipat to $100,000, and allow his parents to execute an appearance bond secured by two properties, and release him to his parents as third-party custodians.
At the bail hearing on Monday, Assistant Attorney General Samantha Vickery asked the judge to deny the defendant’s request.
She also noted that the “defendant’s motion makes unwarranted allegations and personal attack” against her.
Vickery asked the court to allow sufficient time for the AG’s office to respond to Nicholas’ “serious allegations.”
According to Nicholas, “Aside from the FBI lab discoveries that the government finally decided to disclose, the government has no case, and the actions of the AAG just put the foregoing to rest. [But] before they lose this case, they are adamant in making sure they inflict as much harm on the defendant before the unavoidable happens, the dismissal of this case.”
He said the government is pinning its hope on the FBI lab tests results “of alleged semen found on the victim that the defendant supposedly contributed to.”
He added that the FBI lab “did a lot more tests for DNA from the evidence collected from the victim, from the victim’s room, and from the defendant, to include trace evidence.”
He said, “No trace evidence from the defendant or for that matter the victim was found that can be used to prosecute the defendant in this case.”
He said, “Most telling are the tests conducted by the FBI lab on the clothing worn by the defendant the day of the said incidents in this case, to include the very underwear worn by the defendant before and after the alleged sexual assault as well as the shoes he wore that day.”
Nicholas noted that the defendant and the victim are second cousins “so their DNAs are bound to match in great degree because of their ancestry.”
He added, “The defendant was subjected to being searched and his saliva samples taken from him as well as his fingernails swabbed for DNA samples…. These were all done without a search warrant having been issued for the same, a fact that is undisputed as it has been admitted by the government. Equally telling is that the victim in this case has never provided any positive identification of her assailant much less the defendant being her assailant to begin with.”
After hearing from the parties, Judge Camacho granted the request of the defense for reduction and bail modifications.
He placed Kaipat on house arrest, and appointed his parents as third-party custodians.
The judge also reduced the bail amount from $250,000 to $50,000 after the defense put up a property bond.
For their part, the defense and prosecution agreed not to seal the FBI lab DNA results.
The government said the results do not not exclude the defendant, but the defense said they do not show that the perpetrator was Kaipat.
The victim’s father, a Department of Public Safety official, also took the stand on Monday and told the court that he had been in communication with the police investigators and was getting regular monthly updates regarding the progress of the case.
