FORMER Gov. Ralph DLG Torres has asked Superior Court Judge Pro Tem Alberto Tolentino to reconsider his previous decision to deny the defense motion to dismiss Counts I to XII for failure to allege “mens rea” in the misconduct in public office charges filed against Torres.
According to an online legal dictionary, mens rea refers to criminal intent. “The literal translation from Latin is ‘guilty mind.’ A mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime.”
Torres, represented by attorneys Viola Alepuyo, Victorino DLG Torres, Matthew Holley and Anthony Aguon, has also asked the court to clarify and clearly define the mens rea standard required for the Office of the Attorney General to prove its charges of misconduct in office and of violating 1 CMC § 7407.
The former governor was charged by the AG’s office 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 case also alleged one count of contempt for failure to appear in compliance with a legislative subpoena.
Former Gov. Torres has denied the charges.
In his previous order, Judge Tolentino said, “The standard mens rea for civil penalties and felonies is clear under Commonwealth law and the mens rea for the alleged charges will be presented to the jury in their instructions.”
The judge added, “The central issue of this motion is whether or not defendant is aware and assured of the standard of mens rea he will be held to for the charges and what remedy, if any, is needed at this stage of the proceedings.”
The former governor’s jury trial will start on June 5, 2023.
In a nine-page motion filed on April 6, 2023, the defense stated that the Commonwealth “is obligated to prove all of the essential elements of an offense to sustain a conviction. This includes essential elements which are not set forth in the statute.”
According to the defense, “In denying the motion to dismiss Counts I to XII of the Commonwealth’s Information, as they do not allege any mens rea, it is therefore impossible to distinguish criminal conduct from non-criminal conduct and what mental state the prosecution has to prove beyond a reasonable doubt.”
The court did not clearly provide guidance on the applicable mens rea standard required for each count, the defense stated.
“There is no case-law in the CNMI outlining the exact mens rea to be used in judging the crime of misconduct in public office.
“It is clear error and a manifest injustice not to dismiss or otherwise remedy the prosecution’s defective information.
“This court is allowing defendant to be tried on a defective information which fails to allege all of the essential elements of the misconduct in office charge,” the defense stated.
“Given Commonwealth jurisprudence, this court improperly made a distinction with respect to the essential element requirement between an Information and Indictment in denying the dismissal motion. This court further did not cite any Commonwealth legal authority supporting the distinction between an Information and Indictment with respect to the constitutional requirement that a criminal accusatory instrument allege the essential elements of each charge,” the defense stated.
“Commonwealth law requires a defendant to raise a defect in Information prior to trial or the defect is waived. Mr. Torres timely raised the defect in this Information and this court noted the Information was defective as it did not allege the essential mens rea element. However, this court did not dismiss the Information or otherwise required the Commonwealth to remedy the defective Information. Instead, it is requiring Mr. Torres to stand trial on a defective Information that fails to allege the essential mens rea element. This is in direct violation of the Sixth Amendment and Mr. Torres’s due process rights. It also impacts the jury instructions as the court cannot instruct the jury that the Government has charged Mr. Torres with misconduct in public office when, as a matter of law, it has not done so.”
The defense has also requested the court to disqualify special prosecutor James Robert Kingman, and reconsider its previous order denying the motion for the Office of the Attorney General to withdraw or be disqualified as prosecutor.
