ATTORNEY Matthew J. Holley has filed an opposition to the Office of the Attorney General’s notice of conflict of interest in the representation of Gov. Ralph DLG Torres by attorneys Viola Alepuyo and Anthony Aguon.
The Sixth Amendment right to counsel of the United States Constitution applies to the CNMI, said Holley, who also represents the governor.
He said the prosecution “bears a heavy burden” in showing that the court should override Torres’ Sixth Amendment right to counsel of his choice.
When confronted with a prosecution effort to disqualify defense counsel based on a conflict of interest, Holley said, courts should be cognizant that the prosecution “may seek to ‘manufacture’ a conflict in order to prevent a defendant from having a particularly able defense counsel at his side.”
The AG’s office, represented by Chief Solicitor J. Robert Glass Jr., has asked the Superior Court to look into a possible conflict of interest in the representation of Gov. Torres by Alepuyo and Aguon because of their representation of two government witnesses.
Alepuyo represented Frances Dela Cruz, the governor’s executive assistant, in connection with the hearing held by the Judicial and Governmental Operations Committee of the House of Representatives.
Aguon, for his part, represented Police Officer Jomalyn Gelacio also in connection with the same legislative hearing.
On April 8, 2022, the AG’s office filed a criminal case against the governor, alleging 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 first lady Diann T. Torres. The case also alleges one count of contempt for failure to appear in compliance with a subpoena.
The governor has pled not guilty while his lawyers have filed a motion to have the AG’s office withdraw or be disqualified as prosecutor.
They said Attorney General Edward Manibusan himself flew first class, adding that the AG is prosecuting the governor for an alleged violation in which the AG provided legal advice.
Superior Court Judge Pro Tempore Alberto E. Tolentino recently granted the stipulation of the parties to reschedule the hearing regarding conflict-of-interest notice of the AG’s office.
The hearing is now set for May 24 at 3 pm.
As for Torres’ motion to disqualify the AG’s office, it will be heard on May 31, at 9 a.m., the court stated.
Holley’s arguments
In his 14-page opposition, Holley stated that the prosecution has not shown that its alleged witnesses require disqualification.
He said it appears that the Office of the AG is uncertain whether the alleged conflict is based on a concurrent conflict of interest, or a conflict based on successive representations.
“Nevertheless, in seeking disqualification, the prosecution has failed to specify 1) why testimony from Dela Cruz and Gelacio is necessary, 2) what element of any offense they will testify about, 3) that the matters they will testify about cannot be established by other means, or 4) that their testimony will entail any confidential information,” Holley said.
The charges against the Governor primarily allege that he “caused” the issuance of premium air travel tickets in violation of 1 CMC §7407(f), Holley noted.
According to Holley, the same law imposes a civil monetary penalty on any government employee who causes a travel agent to issue a premium airline ticket.
“The exhibits filed with the defense motion for the OAG to withdraw or be disqualified show that the issuance of air tickets is all based on paperwork and forms commonly known as Travel Authorizations [or TAs]. These travel authorizations are necessary for a travel agency to issue a premium airline ticket,” Holley said.
In claiming Dela Cruz and Gelacio as primary witnesses, Holley said, “the OAG does not articulate or explain why their testimony is so important to the case given the existence of the TA and other documentation.”
“Indeed,” he added, “the OAG does not assert or claim that they possess information which cannot be ascertained or derived from the paperwork or from other persons. This failure or inability to show why their particular testimony is so important negates any basis for disqualifying defense counsel.”
As for the contempt charge, Holley said, it is unrelated to the charges based on 1 CMC §7407(f).
“However, it is a matter of public record that the Governor did not appear pursuant to the subpoena because he asserted the executive privilege and other privileges and immunities based on the separation of powers which constitute an affirmative defense under 1 CMC § 1307(c),” Holley said. “Again, the prosecution does not articulate or explain how testimony from Dela Cruz and Gelacio is necessary in relation to the contempt charge.”
