Assistant AG J. Robert Glass Jr. said the CNMI Supreme Court does not allow for such a brief in a petition for writ of mandamus.
In a petition for writ of mandamus on Oct. 13, 2020, Glass asked the high court to review the order of Associate Judge Joseph N. Camacho issuing a discovery in the preliminary hearing of defendant Rudolph Rudolph.
Glass noted that the high court ordered the respondent to file an answer, but did not request either the trial court or any other party to address the petition.
“Despite having no request, the PDO filed a motion for leave to file amicus curiae brief with the court by citing NMI Sup. Ct. R. 29,” he added. “Rule 29 governs amicus briefs in appeals; however, the issue before the court is a petition for writ of mandamus and not an appeal. In fact, the reason for the writ is because the Commonwealth has no appeal right to challenge the lower court’s creation of new preliminary hearing rules to provide for discovery at a preliminary hearing.”
Glass said, “By filing this brief now, PDO is attempting to invite themselves into the case. Such a faux pas, akin to inviting yourself to a wedding while showing the bride the dress you already purchased, should not be rewarded.”
If the high court had wished for an amicus brief, it would have requested it, Glass added.
He said the proposed brief “also contains numerous misstatements of law, and attempts to mislead this court by presenting factual evidence that is neither in the record nor true in actual practice.”
Glass said, “The intended brief misstates the law, uses case law incorrectly, and ignores binding precedents from this Court, which is possibly sanctionable under General Order 2000-200 which states that ‘…all attorneys practicing before the Commonwealth Supreme Court are put on notice that all briefs and other legal memoranda filed with the court must contain citations to local cases, wherever relevant. Failure to cite to a local case that is binding authority for a legal proposition advanced by counsel may result in the imposition of sanctions on counsel.’”
The amicus brief makes statements not supported by the record without even providing any proof of such statements, Glass reiterated.
“PDO attempts to poison this court’s view of how preliminary hearings are conducted by only using the arguments of counsel to support their view,” he added.
Rudolph Rudolph was charged on Aug. 5, 2020 with three counts of sexual abuse of a minor in the first degree and four counts of sexual abuse of a minor in the second degree.
In his reply to the petition for writ of mandamus, Rudolph’s attorney, Anthony Aguon, said the Superior Court made no clear error in its order for tangible materials.
“Disobeying a valid court order simply because a party disagrees with that court’s decision is not a dire instance with no available relief, and a party should not be able to evoke a writ of mandamus whenever it disagrees with a court decision. Otherwise, writs of mandamus would not be an extra ordinary remedy and will go against the court’s long-standing practice of avoiding piecemeal appeals,” Aguon said.
Glass wants the high court to direct Judge Camacho to rescind his previous order granting the request of Rudolph to have all tangible materials used by law enforcement to establish probable cause.
Judge Camacho, in his order on Sept. 28, 2020, said Rudolph has the right to cross-examine adverse witnesses at a preliminary examination hearing “to weed out groundless claims.”
The judge said the defendant is also entitled to the tangible materials in possession of the Commonwealth that relate to the government’s determination of probable cause so that the defendant can fully and properly cross-examine the government witness.
The AG’s office, for its part, said the trial court lacks jurisdiction to compel discovery in a preliminary hearing.
