HAGÅTÑA (The Guam Daily Post) — A senator and defense lawyer feels the use of contracted attorneys by the Office of the Attorney General has created a “weird” and “unnecessary situation.”
Earlier this week, Superior Court of Guam Judge Maria Cenzon ruled on a motion to disqualify Joseph McDonald, a private attorney on contract with the Office of the Attorney General, in the case for Theresa Maria Aflleje Blas, who faces charges of promoting prison contraband.
Blas’ attorney, Sen. Thomas Fisher, filed the motion arguing there was a conflict of interest in McDonald being “a prosecutor who is in the morning on one side of the table and the afternoon is on the other,” Fisher stated in January during oral arguments on the motion.
Cenzon on Tuesday issued her decision and order, granting McDonald be disqualified from the case.
After the order was issued, Fisher told The Guam Daily Post he was grateful for the decision, but felt the motion was unnecessary.
“The whole situation was created by (Attorney General) Doug Moylan and his inability to manage an office. I’m not the only one who’s had to make this motion, and so many hundreds, I guess, hours of attorney work has gone into the issue that … just wasn’t necessary … and most of it is getting billed to the taxpayers, which is unfortunate,” Fisher said.
In August 2023, Moylan told the Post that contracts for private defense attorneys were used on an as-needed basis to address the shortage of prosecutors in his office. Moylan further explained the budget law, Guam Public Law 36-107, allowed the AG’s office to authorize contracts.
In her order, Cenzon addressed Fisher’s motion, along with another argument that Guam law does not allow government attorneys to engage in outside employment.
She further stated that in McDonald’s case, because he started representing his current clients before his contract with the AG’s office, his representation does not violate Guam law.
Instead, Cenzon found that since McDonald, despite stating he was a “consultant” for the AG’s Office with the contract, in reality is involved with questioning witnesses, working with investigators and possibly engaging in plea negotiations, the situation “gives a strong likelihood that he cannot separate his obligation as a prosecutor from his duties to his criminal client,” Cenzon stated in her order.
After Cenzon’s decision was issued, the Post asked Moylan for a comment on the decision. Yolanda Elliott, the chief of staff for the AG’s office, responded as of Thursday afternoon that Chief Prosecutor Gloria Rudolph was reviewing the case and that a motion for reconsideration “may be forthcoming.”
Motions
Along with Fisher making the motion to disqualify contracted prosecutors, attorney Joaquin “Jay” Arriola Jr. argued on a similar motion in November 2023 for his client Ricky Camp, a mixed martial arts fighter accused of smuggling drugs.
In that case, according to Post files, Arriola argued another contracted attorney, William Pole, should be disqualified in the case before Judge Alberto Tolentino.
Arriola, like Fisher, argued the contracts were illegal and present a conflict of interest, considering Pole, while being on contract, represents criminal defendants. A decision from Tolentino is pending in Camp’s case.
More recently, on March 22, when Lorena Uncangco, an employee of the AG’s office charged with criminal sexual conduct, appeared for her magistrate’s hearing, Richard Dirkx from the Alternate Public Defender argued the contracts were illegal when McDonald was the prosecutor in the hearing and authored Uncangco’s magistrate’s complaint.
Magistrate Judge Benjamin Sison Jr. did not make a decision on the argument made by Dirkx.
In light of other motions similar to the one he filed, Fisher told the Post, “it’s a weird situation.”
“It’s a weird situation. There’s a practical matter … you’re an attorney, you walk into the courtroom and you’re representing somebody in that capacity as a defense attorney and then two hours later you walk into another courtroom and you’re prosecuting,” said Fisher.
“It’s corrosive on people’s faith in the institution. It’s a very bad thing,” Fisher added.
