ALLOWING a defendant to file a motion for criminal contempt as a means to strike back at the Office of the Attorney General, and subsequently setting a hearing on that motion, violates the separation of powers doctrine, Chief Solicitor J. Robert Glass Jr. of the AG’s office said.
In a brief submitted to Superior court on Friday, Glass 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.”
The defendant, 17-year-old Kenneth Thomas Blas Kaipat, is represented by attorney Brien Sers Nicholas who filed a cross-motion for contempt against Chief Prosecutor John Bradley and Assistant Attorney General Samantha Vickery.
Nicholas has accused Bradley of “talking” to the media “not once but twice” about the case while it was still a juvenile matter.
Nicholas added that the prosecution is making “scandalous accusations” against the court.
Superior Court Associate Judge Joseph N. Camacho has scheduled a hearing for June 9 at 10 a.m.
In response, Glass said: “No criminal contempt is available via a motion by Defendant under 6 CMC § 3307.”
He added, “If the court is to pursue contempt proceedings, pursuant to NMI R. Crim. P. 42(b), Associate Judge Camacho is disqualified from presiding over the proceeding.”
According to Glass, the defendant has publicly filed a motion for criminal contempt based on his own interested position and reading of 6 CMC § 3307, but has failed to offer any authority for an interested party to bring a motion for criminal contempt or authority for a court to hear such a motion.
He said the court should not allow a defendant to hijack the proceedings via a motion for criminal contempt, as such motions are a violation of the separation of powers.
Under the CNMI Constitution only the attorney general, as the chief legal officer, is empowered with “prosecuting violations of Commonwealth law,” Glass said. “Neither the court nor the defendant has the power to prosecute a case via a motion and hearing under 6 CMC § 3307. The AG reviewed the record and evidence submitted by the court, and found that the information provided does not support criminal charges.”
Contempt charges alleging disrespect or criticism of a judge cannot be presided over by that judge, Glass added.
“While the court has some authority to hold contempt proceedings under its inherent powers to control the order of its courtroom, no such proceeding has been instituted by the court.”
Further, he said, any such proceeding would require the disqualification of Associate Judge Camacho from presiding over that contempt proceeding.
Glass reiterated that the Office of the Attorney General is constitutionally empowered to file criminal contempt charges, and it is the attorney general who decides if a special prosecutor is required.
Judge Camacho recently found probable cause to charge 17-year-old Kenneth Thomas Blas Kaipat with three counts of sexual assault in the first degree, two counts of sexual assault in the second degree, aggravated assault and battery, assault with a dangerous weapon, strangulation, and burglary.
Judge Camacho denied the AG’s motion to recuse himself from hearing the case. The prosecution has asserted that “the defendant’s mother has a close personal relationship to Judge Camacho’s brother,” but the judge said the relationship does not fall within the third degree of familial relationship that requires a judge to recuse from a case. “I do not know the defendant’s mother,” the judge added.
Glass noted that while the judge “denied the 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.”
He said, the judge, “unbeknownst to the lawyers involved in the litigation, issued a letter on May 24, 2021 to the AG” stating that the judge was “obligated to bring the matter to your [AG’s] attention.”
Glass said the judge “then summarized some of the facts and law as he found them to be true. The judge made statements indicating his beliefs of the truthfulness of a witness, the truthfulness of the prosecutor, and alleged legal missteps taken by the prosecutor in regards to filing an affidavit for motions to recuse.”
Glass said the AG disagreed with the assessment of the judge and issued a letter declining charges.
“The court is now entertaining a motion for contempt brought by an interested party and has requested briefing on issues of the power of the AG to prosecute cases. The extrajudicial statements made via a letter to the AG concerning a case and the attorneys before the court, along with the additional act of entertaining a contempt proceeding brought by an interested party would cause a person with all of the facts to question the impartiality of the judge,” Glass added.