THE Office of the Attorney General’s claim that the “sole discretion” to prosecute criminal violations rests with the attorney general pursuant to the CNMI Constitution “is not only misplaced but most especially misguided at best,” attorney Brien Sers Nicholas said.
In response to the government’s opposition to his cross-motion for contempt of court against Chief Prosecutor John Bradley and Assistant Attorney General Samantha Vickery, Nicholas said: “The Commonwealth may want to review closely the powers and duties of the Office of the Public Auditor in this regard.”
Nicholas, who represents 17-year-old Kenneth Thomas Blas Kaipat in a sexual-assault case, said: “It is quite disheartening that a review of the Commonwealth’s response makes it very clear that the Commonwealth appears to downplay the damage it has caused to the judiciary of this Commonwealth, not to mention the exposure of its grave misunderstanding of what is a criminal contempt and how a criminal contempt is played out in court, as a matter of law.”
Nicholas said the contempt being sought was a criminal one given that the conduct of Bradley and Vickery all occurred in a juvenile case involving criminal accusations and subsequently in the criminal case involving Kaipat.
“The Commonwealth furthermore, regretfully, relies on the conclusion by the AG himself, Edward Manibusan, that there is no criminal contempt in this case. To the contrary, there is criminal contempt beyond a reasonable doubt in this case. As a side matter and, frankly, needless to say, the criminal contempt being sought is against sworn officers of this court who work for the Office of the AG. Nothing more needs to be said in this regard.”
He added, “Now, how the defendant’s request for criminal contempt will be prosecuted will be in accordance with Com. R. Crim. Pro. 42.”
It is in this issue of “request [i.e., Defendant’s Cross Motion for Criminal Contempt] versus ‘prosecution of criminal contempt per Rule 42’ that the Commonwealth is blinded and confused,” Nicholas said.
On June 7, 2021, Superior Court Associate Judge Joseph N. Camacho issued an order and notice staying the defense motion for a scheduling order regarding the cross-motion for contempt of court against the prosecutors.
Judge Camacho also vacated the June 9 hearing, which he scheduled pending another judge’s review of the Office of the Attorney General’s renewed request to recuse himself from the case.
“The case is then returned to Presiding Judge Roberto C. Naraja to assign to another judge to hear the government’s renewed request for recusal,” Judge Camacho added.
Camacho issued the order following the government’s opposition to the defendant’s motion for criminal contempt and the court’s setting a hearing on that motion.
In a brief submitted to the court last week, Chief Solicitor J. Robert Glass Jr. of the AG’s office said: “Defendant has provided no rule, case law, statute, or any other authority that allows a defendant to bring a motion for criminal contempt. Defendant’s motion and any hearing on the matter violates the separation of powers doctrine and therefore should be denied without a hearing.”
Glass also renewed the prosecution’s request that Judge Camacho recuse or disqualify himself from hearing the case. “While the judge denied the (initial) request for recusal, the judge has since become further embroiled in the proceedings such that a reasonable person would question the impartiality of the judge,” Glass added.
For Nicholas, the authority of the judiciary “is not subject in any way, shape or form to the discretion of the AG, who is himself an executive officer for the executive branch.”
He added, “The AG has no say so whatsoever when it comes to the authority of the judiciary of this Commonwealth.”
He said, “This authority has been disregarded by Bradley and Vickery, based on their scandalous arguments against AJ Camacho, [who] is being accused of ‘unfairness and corruption.’”
Nicholas said, “Rule 42 empowers the court to prosecute criminal contempt either by summary disposition or upon notice and hearing. With respect to prosecution of criminal contempt upon notice and hearing as is the case here, Rule 42 empowers the court to appoint an attorney to conduct the prosecution.”
“So, yes,” he added, “this court can appoint an attorney to prosecute Bradley and Vickery for criminal contempt in this case to the exclusion of the OAG. After all, the OAG cannot prosecute itself….”
As for the government’s renewed request that Judge Camacho recuse himself from the case, Nicholas said the motion is now moot following Judge Camacho’s order of staying the proceedings and vacating the hearing.
“The Commonwealth, by seeking to have AJ Camacho disqualified in hearing the contempt charges in this case, unequivocally admits that its scandalous arguments directed at AJ Camacho were disrespectful and critical as well.”
He reiterated that Bradley and Vickery “must be prosecuted for criminal contempt in this case so that the authority of courts may not be so carelessly questioned by anyone, most especially by sworn officers of this same judiciary.”
AG Edward Manibusan, in a letter to the court dated May 24, 2021, said he would not to file criminal contempt charges against the prosecutors.
He said a criminal offense under 6 CMC § 3307 is committed when all the elements of the case are present, including but not limited to conduct to “knowingly,” and “willfully” commit the offense.
“My review of the documents shows that these elements are not satisfied beyond a reasonable doubt with respect to AAG Vickery, and that there is no legal basis for a criminal contempt charge against Bradley,” Manibusan added.
