FORMER Gov. Ralph DLG Torres, through his defense attorneys, has requested the Superior Court to reconsider its previous order denying the defense motion for the Office of the Attorney General to withdraw or be disqualified as prosecutor.
Torres, who is represented by attorneys Viola Alepuyo, Victorino DLG Torres, Matthew Holley, and Anthony Aguon, also asked the court to disqualify special prosecutor James Robert Kingman from prosecuting the former governor.
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.
According to his 17-page motion, “The court’s finding that the OAG may prosecute Mr. Torres despite the apparent concurrent conflict in this case is also contrary to law, a clear error and a manifest injustice.”
Here, the defense attorneys stated, “the OAG decided to represent one of its clients, the Commonwealth, to criminally prosecute another one of its clients, Mr. Torres.”
“This concurrent representation triggers the application of [the American Bar Association’s Model Rules of Professional Conduct] MRPC Rule 1.7 duties and obligations when an attorney has concurrent representation of two clients with an adverse interest in a particular matter,” the defense added.
Judge Pro Tem Alberto Tolentino held that MRPC Rule 1.7 does not apply to this case because the individual holding the office of the governor is not a client of the OAG, and because the OAG is not charging the Office of the Governor.
But according to the defense attorneys, the court did not cite any supporting CNMI Supreme Court decision or relevant part of its analysis or otherwise explain how it reached that conclusion.
“For all times relevant to the case at bar until Jan. 9, 2023, Mr. Torres was not a former client of the OAG, but rather a current one. Consistent with the Jasper decision, the OAG had a nonwaivable conflict of interest here in violation of MRPC Rule 1.7 because of its concurrent representation of two clients: the Commonwealth and the Governor. The Disqualification Order’s holding that MRPC Rule 1.7 does not apply to this matter is therefore contrary to law, a clear error and a manifest injustice as it is inconsistent with CNMI Supreme Court precedence. The holding further does not recognize that the charges brought against Mr. Torres concern actions that he took in his official capacity as Governor and made for a public purpose in his official capacity as the Governor of the Commonwealth of the Northern Mariana Islands. The assertion that this prosecution is limited solely to Mr. Torres in his personal capacity is contrary to the Information filed by the OAG as well as other rulings issued in this case.”
‘Screen’
According to the defense, the OAG has previously represented to this court that a “screen” or “wall” had been erected within its office to shield this case from AG Edward Manibusan and other assistant attorneys general.
“The procurement of the special prosecutor and the OAG request demonstrate that is simply not the circumstance,” the defense added.
As a matter of law, the attorney general is the expenditure authority for the OAG, the defense stated.
“Thus, AG Manibusan could not make the required certification unless he possessed substantive knowledge about this prosecution and had substantive discussions about this case with one or both of the assistant attorneys general prosecuting this case.”
The OAG’s purported “wall” or “screen” is therefore nonexistent, or at the least it is porous, as it does not bar consultation or discussion with the attorney general concerning this case, the defense stated.
Moreover, the special prosecutor was not informed that Manibusan had a conflict of interest in connection with this case and was “walled” or “screened” from this case pursuant to the representations the OAG made to this court, the defense stated.
“This also calls into question whether any substantive information of this case was shared between AG Manibusan and the special prosecutor, which would disqualify him from this case as well. Even more so, the contract reveals that AG Manibusan will not be ‘walled’ or ‘screened’ from this case, as the contract expressly provides that the special prosecutor would report directly to AG Manibusan,” the defense added.
The defense also argued that the former governor was not provided with a meaningful hearing.
Witnesses
“Mr. Torres was not afforded a meaningful hearing for his disqualification motion because he was prevented from presenting witnesses and testimony to fully develop the record and substantiate the need for the extraordinary judicial act of disqualifying the OAG. Mr. Torres was denied the opportunity to call the investigators of the OAG as witnesses. Those witnesses would have provided further testimony on the scope of advice the OAG provided the Governor and the CNMI Executive Branch on premium class travel during the relevant time periods. Mr. Torres was also denied the opportunity to call members of the Travel Committee assigned to update the CNMI Travel Policy, who would have testified on the advice on premium travel that was provided by the OAG as counsel. The testimony would not only have fully developed the record for the Court, but it would have also provided substantial evidence to show why disqualification was appropriate. The need for such witnesses was imperative, especially because Mr. Torres’s first and most important witness, [then]-Lt. Gov. Arnold I. Palacios, suffered a severe medical condition at the beginning of his testimony which incapacitated him and rendered him incapable to testify,” the defense stated.
“The excluded witnesses were crucial and materially prejudiced Mr. Torres, since the Court did not hold that Mr. Torres failed to articulate a rational and substantial legal argument. Instead, the Court denied Mr. Torres’ motion on the grounds of insufficient evidence. The insufficiency found by the Court is a direct result of excluding testimony from the above witnesses. This deprived Mr. Torres of his constitutional due process right to a meaningful hearing and is a constitutional violation in clear error and a manifest injustice,” the defense added.
The defense reiterated that the special prosecutor should be disqualified.
“At the May 31, 2022, evidentiary hearing, the assistant attorneys general handling this case represented to this Court that they are competent to litigate this case without any assistance. Based on that representation, the procurement of a special prosecutor is not premised on the prosecution needing additional legal talent. Hiring a special prosecutor for this case therefore has to be an effort to mitigate or negate the effect of this court not disqualifying the OAG. While such a ploy may be viable in other jurisdictions, that is not the law in the Commonwealth.”
According to the defense, “The Feb. 28, 2023, contract with the special prosecutor conclusively establishes that AG Manibusan was directly involved in the discussions and negotiations with the special prosecutor, even though he was supposedly screened from this case. The contract also unequivocally establishes that the special prosecutor is the lead prosecutor for this case. The contract expressly provides that the special prosecutor is ‘retained to represent the Commonwealth of the Northern Mariana Islands as a special prosecutor in the case of Commonwealth of the Northern Mariana Islands v. Ralph Anthony Deleon Guerrero Torres, Criminal Case No. 22-0050.’ It should be noted that the contract does not state that the special prosecutor will assist the current AAGs that are handling this case. Most importantly though, the contract expressly provides that the special prosecutor will be the attorney responsible for this engagement and that the special prosecutor would report directly to AG Manibusan. Given the above facts, it cannot be disputed that the special prosecutor has been exposed to the knowledge and conflict of interest attributable to AG Manibusan.”
