JUDGE Pro Tem Arthur Barcinas has disqualified the CNMI Office of the Attorney General, including Assistant Attorney General James Robert Kingman, from prosecuting former Gov. Ralph DLG Torres, who was charged with misconduct in office.
In a 16-page order issued Tuesday evening, the judge granted the defense motion for reconsideration and motion for the OAG to withdraw or be disqualified as prosecutor in case no. 22-0050-CR.
Judge Barcinas declined to appoint a new special prosecutor and being unable to appoint the Office of the Public Auditor to prosecute in lieu of the OAG, the court instead defers to the executive branch to “execute its prosecutorial authorities in the case.”
The judge also disqualified the OAG and Kingman from prosecuting a related case, the refiled separate charge of contempt and misconduct in public office against the former governor (23-0127-CR).
‘Unsurprising and inevitable’
In a statement, Kingman said: “Now that this judge has finally ruled that I am disqualified from prosecuting either of these cases, I believe that I am able to express myself without violating any of my obligations as a prosecutor.”
He said the ruling is “unattached from law, facts, and reason.”
“It is, however, unsurprising and inevitable,” he added. “Since I arrived and the new judge pro tem was appointed at the trial level to a case he was already hearing as a justice pro tem on the appellate level, it was clear that the normal operations of judicial conduct would not apply here.”
“That bleak conclusion has been enforced time and again,” Kingman said. “From accepting the argument that ‘investigation’ is not a ‘law enforcement purpose’ to claiming that investigation cannot happen before or after charging an offense, to refusing to issue a scheduling order of any kind — despite several motions to do so and representations otherwise — to issuing judgments without reviewing evidence, it has been clear to all that the fix was in.”
According to Kingman, “This judge has overruled prior rulings in the same case and claimed that the sole prosecuting authority in the Commonwealth may not prosecute the executive, despite the clear effort by the people to have a separate legal authority operating free of the will of the governor.”
“This judge has, without a hearing, determined that a person living 8,000 miles away — who had never even heard of the defendant — is conflicted from prosecuting the case,” Kingman added.
He noted “a conspicuous spiderweb of overlapping conflicts by these exact same attorneys.”
“Presumably, they assumed their efforts to drive me from the island would work and that they would not have to abase themselves with such an argument and decision. To that end, at least, I have succeeded.
“It is no coincidence that this ruling was made shortly after a pair protecting the federal executive. When there are so many months of unjustified delay, timing must be considered,” Kingman said.
“These islands, in an incredible act of courage and foresight, asked for the rule of law and not of man by joining the United States. The days of kings beyond reproach were supposed to be behind them.”
Oversight
According to Kingman, he does not know why the federal government has “refused to assist the CNMI.”
“That is what they are supposed to do when a jurisdiction demonstrates that it needs help, from the Osage to the Jim Crow South. But if there is a clearer signal that it needs oversight, I cannot think of one,” Kingman said.
“This place, by no desire of its own, is where there is supposed to be a clear difference between how America and our geopolitical adversary operate. When it fails, we should all be alarmed. I will not be deterred by this ruling. The people should not be either,” Kingman added.
Background
In December 2021, then-Governor Torres, a Republican, was found by a Democrat-Independent-led House Judiciary and Governmental Operations Committee in contempt of a legislative subpoena for refusing to appear before the panel, which was investigating his public expenditures.
On April 8, 2022, the Office of the Attorney General charged the former governor with 12 counts of misconduct in public office and one count of theft relating to the issuance of airline tickets for business class, first class, or other premium class travel for himself and/or Diann T. Torres, his wife. The OAG also alleged one count of contempt for failure to appear in compliance with a legislative subpoena.
The former governor denied the charges.
On Aug. 23, 2022, Judge Pro Tem Alberto Tolentino dismissed without prejudice the contempt charge against the former governor.
The judge said evidence indicated that the prosecutor, J. Robert Glass Jr., was exposed to “privileged information regarding non-appearance to a legislative subpoena as charged in Count XIV — Contempt.”
On Oct. 26, 2023, Kingman refiled a separate charge of contempt and misconduct in public office against the former governor.
On Dec. 19, 2023, Judge Barcinas directed the prosecution to refile the penal summons against the former governor.
Defense motion
Torres’s attorneys, Viola Alepuyo, Matthew Holley, Victorino Torres and Anthony Aguon, filed a motion for reconsideration of the order granting in part and denying in part the defendant’s motion for the OAG to withdraw or be disqualified as prosecutor.
They said: (1) the disqualification order is an interlocutory order and there are grounds to justify its reconsideration; (2) the court’s reliance on HLI 17-2 [which made the AG an elected official] to deny the defendant’s motion to withdraw is a clear error, a manifest injustice, and contrary to case law; (3) the court’s determination that the Model Rules of Professional Conduct 1.7 does not apply to the OAG is a clear error and a manifest injustice; (4) disqualifying the OAG is appropriate because the wall or screen purportedly erected by the OAG is nonexistent; (5) reconsideration is necessary because the defendant was allegedly not provided a meaningful hearing; and (6) the disqualification of Kingman is appropriate.
‘Clear error’
In his order, Judge Barcinas said the motion to reconsider was properly brought and the previous order of Judge Tolentino “demonstrated clear error or manifest injustice.”
“According to Judge Tolentino’s reasoning, defendant’s arguments regarding the OAG’s potential conflict of interest would be moot because the governor is allegedly being charged in his individual capacity,” Judge Barcinas said, adding that he found the reasoning “to be in error.”
Despite finding no error in Judge Tolentino’s reliance on HLI 17-2, Judge Barcinas said Judge Tolentino’s final determination “is ultimately incorrect, in that the charges alleging a violation of 1 CMC § 7407 must by necessity be leveled against a defendant in their official capacity.”
“1 CMC § 7407(f) expressly states that a civil fine of one thousand dollars must be paid by ‘[a]ny government employee who causes an airline ticket to be issued’ in violation of 1 CMC § 7407. The statute’s inherent nature is such that, for the charge to be brought, defendant must have been acting in their capacity as a government employee,” Judge Barcinas said.
He finds that this constitutes a clear error on the part of Judge Tolentino, and so he grants the defense motion for reconsideration.
In addition, Judge Barcinas said “the wall or screen purportedly erected by the OAG was not effective.”
At the May 31, 2022, hearing, Attorney General Edward Manibusan testified that when he became aware of a potential conflict in representation between the defendant and the Commonwealth, Assistant Attorney General Robert Glass was screened effectively as an attorney not implicated in the conflict.
Manibusan testified that the screening of Glass was written, but the defendant said he did not receive it. Manibusan also testified that he screened himself off from any conflict but did not put the screening in writing and he instead verbally informed Glass about screening himself off.
Manibusan further testified that Glass was screened from cases representing the former governor or the executive offices in civil litigation since the investigation in this case began in 2021 and was reassigned to a separate office in the criminal division. This was corroborated by Glass’s declaration.
Manibusan likewise testified that the defendant was given notice that the OAG would not be representing him in the earlier legislative subpoena proceedings because of the potential for criminal charges.
“Upon consideration of the record, the transcript of the May 31, 2022 hearing, and the new evidence regarding Attorney Kingman’s contract, the Court finds that the effectiveness of the OAG’s screen regarding Counts I-XII merits reconsideration on the grounds that AAG Glass and AG Manibusan may potentially have influenced Attorney Kingman,” Judge Barcinas said.
Switching sides
In a related case, 23-0127-CR, the judge said Manibusan, “having advised the [former] Governor on the subpoena regarding Charge XIV (Contempt) and then abandoning said representation in expectation of the Commonwealth’s prosecution against the [former] Governor, effectively ‘switched sides,’ and that not only was his disqualification imputed to the entire OAG, but because he had changed representation of his client in anticipation of the pending client, no amount of screening would be sufficient to allow any member of the OAG to participate in the ensuing matter.”
“Because the Contempt charge in 23-0127-CR springs from and is inherently tied to the charges in this case, the court disqualifies the OAG from prosecuting 22-0050-CR,” Judge Barcinas added.
As for the disqualification of Kingman as special prosecutor, Judge Barcinas agreed with the defense: “It cannot be disputed that the special prosecutor has been exposed to the knowledge and conflict of interest attributable to AG Manibusan.”
“Under the same reasoning regarding the OAG’s screen for conflict of interest, the Court again finds that AAG Kingman is disqualified from this matter. The terms of his contract indicate that he had discussed the case with AG Manibusan and expressed his expectations that he would report to and take orders from AG Manibusan, which at the very least gives the appearance of imputed conflict,” Judge Barcinas said.
“The issue is only further complicated by his appointment as Managing Prosecutor of the OAG’s newly created White Collar Crimes Task Force, a position in which he must also report to AG Manibusan,” the judge added.
New prosecution
“Because the OAG and AAG Kingman are disqualified from further prosecuting this case, the Court is now faced with the issue of new prosecution. Because the entire OAG is disqualified, any Special Prosecutor hired by someone within that office would be tainted by association,” the judge said.
Citing the previous ruling of Judge Tolentino, Judge Barcinas said, “The law does not express any authority of the court to recommend this matter to the Office of Public Auditor nor to appoint the OPA to prosecute.”
Judge Barcinas said he is declining to appoint a special prosecutor because of his concerns regarding “the appearance of any potential influence on the prosecutorial process and the fact that there are alternative means for the executive branch to pursue this prosecution of its own volition.”
“Therefore, the Court, having declined to appoint a special prosecutor in this case, the entire OAG being disqualified from further prosecuting this matter, and the Court lacking any statutory authority to compel any other agency to prosecute, the Court leaves it to the executive branch to take up the prosecutorial mantle if it so chooses,” the judge added.
Judge Barcinas also scheduled a hearing for Oct. 14 at 10 a.m. via Zoom.
“All other issues pending before the court in this matter, if any, will be held in abeyance pending the appointment of a new prosecutor,” Judge Barcinas said.
