The Office of the Attorney General has asked the high court to deny the OPD’s request, saying that court rules do not allow for such a brief in a petition for a writ of mandamus.
NMI Supreme Court Rule 29(a) states: An amicus curiae other than the United States or the Commonwealth requires leave of court or consent of the parties to file a brief.
Rule 29(b), for its part, requires a movant to state its interest and the reason why its brief is desirable and relevant to the disposition of the case.
The OPD stated that it represents most criminal defendants in the CNMI, and added that its brief “would be desirable because it can bring to bear broader defense experience than the defense attorney of the defendant.”
But the justices in their order pointed out that the OPD did not disclose that it withdrew from representation of the defendant on Aug. 5, 2020 due to a conflict of interest.
The justices said the disposition of the case will affect the OPD as it represents the majority of criminal defendants in the CNMI. “Still, it would be inappropriate to permit the OPD to assist a party via the backdoor that it was precluded by conflict rules from representing directly,” the justices said.
This is particularly so since the OPD failed to disclose its prior representation or explain why conflict rules do not preclude participation as an amicus, the justices added.
Chief Justice Alexandro C. Castro, Justice John A. Manglona and Justice Perry B. Inos issued the ruling on Nov. 5, 2020.
In an email to Variety, Chief Public Defender Douglas Hartig said: “The denial is not in response to the government’s positions and issue and the case is still being litigated. Our initial position is laid out in the opening brief and we believe is well taken.”
The AG’s office earlier petitioned for a writ of mandamus, requesting the CNMI Supreme Court to review the order of Associate Judge Joseph N. Camacho issuing a discovery in a preliminary hearing of Rudolph Rudolph.
Rudolph was charged on Aug. 5, 2020 with three counts of sexual abuse of a minor in the first degree and four counts of sexual abuse of a minor in the second degree.
The AG’s office wants the high court to direct Judge Camacho to rescind his previous order granting the request of Rudolph to have all tangible materials used by law enforcement to establish probable cause.
Judge Camacho, in his order on Sept. 28, 2020, found that Rudolph has the right to cross-examine adverse witnesses at a preliminary examination hearing “to weed out groundless claims.”
The judge said the defendant is also entitled to the tangible materials in possession of the Commonwealth that relate to the government determination of probable cause so that the defendant can fully and properly cross-examine the government’s witness.
The AG’s office has maintained that in a preliminary hearing, the court lacks jurisdiction to compel discovery.
Rudolph is represented by attorney Anthony Aguon while Assistant AG J. Robert Glass Jr. represents the government.
