Pelisamen’s new jury trial will begin today.
Pelisamen through his lawyer Douglas F. Cushnie said that the government has raised the issue of the defendants arguing or commenting on the punishment for the charged offenses.
Cushnie said that the government cites a proposed jury instruction in support of its position that the defendants may not mention punishment in argument.
“Jury instruction no. 25 does not stand for that proposition, thus presumably the supporting law does not stand for that proposition,” Cushnie said. The defense added that the instruction, which appears to track the legal principle involved, is that the jury may not consider punishment on the issue of guilt or innocence.
“There is nothing in that instruction which bars mention of punishment,” the defense said. Cushnie added that there are varying degrees of mentioning punishment.
Cushnie said that since the government has not provided case authority for support of its position of an absolute prohibition of comment, the motion should be denied.
On Monday, the government through Assistant US Attorney Kirk W. Schuler submitted a motion in limine to preclude argument concerning punishment to the court. The government requested the court to grant its motion and instruct the defendant and defense counsel that no argument related to punishment or the effect of a conviction may be made.
Schuler said that during the defendant’s first trial, specifically during the closing arguments, the defense counsel referenced punishment on multiple occasions. Schuler said the defense counsel remarked the government was trying to send the defendant to jail at least twice, and also commented that the government was trying to destroy the defendant’s life. Schuler said they chose not to object at the time.
Schuler added that on retrial, the government requests that the court restrict the defendant from making any argument based on punishment or the effect of a conviction.
The government argued that the jury is not to “consider punishment in deciding whether the government has proved its case against the defendant beyond a reasonable doubt.”
Pelisamen and his co-defendant Attorney Joseph Arriola were indicted for allegedly making over $600,000 in unauthorized withdrawals from the Kaipat estate in 2007.
On May 1, 2009, United States District Court for the NMI chief judge Alex R. Munson declared a mistrial after a 12-member jury and two alternates reached a deadlock and were not able to agree on a verdict.
