Together with the NMPASI’s motion were written declarations from NMPASI lawyer Matthew Holley, a former assistant public defender; attorney Sean Frink; Chief Public Defender Adam Hardwicke; Assistant Public Defender Adam Miles; and CNMI Public School System legal counsel Kelly Butcher.
NMPASI sued Faisao in his official capacity as the administrator and the official supervising the operations of the Kagman Juvenile Detention and Correctional Facility.
Faisao is denying NMPASI access to the facility, its residents and staff.
Such access is necessary in order for NMPASI to perform its congressionally mandated role, according to the complaint.
NMPASI said there have been reported violations “that have not been made public due to confidentiality reasons.”
Miles said his client, who was in the special education program, was arrested this year on burglary and assault and battery charges.
The juvenile was said to be one of the victims in the recent sexual abuse case at the Kagman juvenile center involving one of the guards, Miles said.
Faisao, through the Attorney General’s Office, has asked the federal court to dismiss the complaint and deny the motion for preliminary injunction filed against him by NMPASI
NMPASI “cannot show irreparable harm to detainees,” the AGO argued.
According to Holley, however, “instead of impeding NMPASI’s access to the children of the facility, [Faisao] should be requesting, even demanding, that [NMPASI] advocate on behalf of those children in the facility with disabilities. Accordingly, defendant’s motion to dismiss should be denied.”
NMPASI’s amended complaint enumerated “a few examples of juveniles with disabilities at the facility.”
Murder
NMPASI said one of the detainees was arrested in Nov. 2008 in connection with the murder of a guard at Marianas High School.
The juvenile’s co-defendants have pleaded guilty to murder, but the detainee’s case is still pending because the “attorney general’s expert conducted a psychological evaluation and found the teenager to have an impaired mental ability.”
Hardwicke, the detainee’s counsel, said: “As such, event the prosecutor on the case, Assistant Attorney General Brian Gallagher, and myself were not comfortable going forward with the disposition. The matter remains unresolved and my client has resided at the Kagman Juvenile Detention Facility since his arrest until the present.
My client was in special education at the time of his arrest and is currently not receiving any special education services.”
Inability
Holley said as a former public defender, he also represented a teenager who was detained a day or two in Jan.
2010 after he was charged with breaking a fire extinguisher in school.
“My client was in special education at the time of his detainment,” Holley said.
“The juvenile was set to be adjudicated not too long after the incident but the disposition was put off because the court and the attorneys became concerned about his inability to control his own actions,” Holley said.
Upon further investigation, Holley said it was discovered that the child had a unique arrangement with the school: when he could not control his behavior he would go to the principal’s office and “either remain there for a while or be taken home.”
“Evaluation of the child cited extreme social and emotional concerns,” Holley said about the juvenile whom he no longer represents but whose case is still pending.
Stabbing
Holley said as assistant public defender, he also represented a juvenile who was arrested for stabbing his stepfather in 2008.
He was rearrested for violating his probation and spent weeks in the facility in Aug. 2009.
Holley said the court and both parties had real concerns about the juvenile’s psychological status and requested an evaluation.
“However, at the time there was not psychiatrist available in the CNMI and the evaluation was never conducted.
The lack of qualified individuals to give evaluations has been a recurring problem in the CNMI,” Holley said.
Underage drinking
Holley said he had another juvenile client, also in special education, who was arrested for stabbing another teenager at a party where underage drinking occurred.
After the juvenile spent nine days at the facility, Holley was able to convince the court to place his client under house arrest.
Holley said his then-client qualified for NMPASI services.
According to Holley, “I did not know that my client was entitled to such [NMPASI] services. As a direct result of NMPASI’s efforts, my client was enrolled in a trade school where he has gained invaluable skills in mechanics and plumbing.”
He added, “In light of his new life course, the assistant attorney general at the time and the juvenile court judge agreed that he did not have to return to the facility. My client and his mother were extremely appreciative of NMPASI’s efforts and since his adjudication, my client has never been charged with another crime.”
