MASSAGE-GATE: ORDER FROM JUDGE TO VACATE AND QUASH

February 8, 2010



He concluded (emphasis added):
Without commenting further at this point, the court has sufficient resources to determine if one of its orders has been violated and to impose sanctions therefore if it concludes that such has occurred.

Accordingly, for the reasons given above, all subpoenas are hereby quashed, the motion to vacate the February 17, 2010, evidentiary hearing is granted, and that hearing is hereby taken off-calendar.
This is certainly not a victory for those who were subpoenaed. Indeed, there is no need for a hearing to determine if a court order has been violated. In fact, it appears that an order to hold a prisoner without jail had been violated.

The judge called the event "unprecedented." Surely, no other official has requested the removal of a prisoner especially for a massage.

The order suggests that the court does not want to be involved in conducting a hearing that may lead to criminal charges. It cited the need for separation of the executive and judicial powers.

In his order the judge stated that:
Because both parties have now filed memoranda in support of their respective positions, and to conserve and focus the resources of the court and counsel as the trial date approaches, and more particularly for the reasons stated herein below, the motion to quash subpoenas is granted and the order setting the evidentiary hearing on February 17, 2010, is vacated and the hearing is taken off-calendar.

The facts that led to plaintiffs request for an evidentiary hearing are unique in the court’s experience. For the most part the facts are undisputed and play only a peripheral role in the court’s decision, which is based primarily on due regard for separation of executive and judicial powers.

Defendant herein was arrested, arraigned, and pleaded not guilty to 22 charges of attempting to bring unauthorized aliens into the United States. Defendant was denied bail and remanded to the custody of the U.S. Marshal’s service on January 6, 2010. She was thereafter lodged at the CNMI Department of Corrections, pursuant to an Intergovernmental Agreement between the United States and the CNMI.
In his order, Judge Munson reviewed the incident as related in the affidavits, statements and the documents presented to the court concerning this matter. He concludes that the plaintiffs (US Government) did not meet the burden to prove that the defendant's rights may have been prejudiced. He stated, "It is her attorney’s duty, and not that of plaintiff, to determine if defendant’s rights have been compromised."

The order states:
Next, and most important to the court’s decision, is its concern that it is being asked by plaintiff to occupy an essentially investigatorial role in support of a motion which is, perhaps unavoidably, entirely speculative at this point in time. Plaintiff essentially concedes that it does not presently know if any prejudice has occurred.

However, plaintiff has sufficient investigatory resources at its disposal, and sufficient processes and procedures to conduct its own inquiry into the facts surrounding this unprecedented event. The court concludes that it is inappropriate at this juncture to inject itself into such proceedings. Should plaintiff later be able to offer some evidence in support of its concerns, the court could entertain a new motion.
Instead of holding an evidentiary hearing, charges could be filed resulting in a grand jury hearing. Certainly by now the USAO should have thoroughly investigated the events of the evening that the the governor's masseuse-prisoner was released to give him a massage. In the motion to vacate filed by the Office of the Attorney General it was noted that at least some of those subpoenaed had been questioned by authorities.

Judge Munson states (emphasis added):
As acknowledged by the U.S. Attorney in its opposition, all subpoenaed participants at the evidentiary hearing face at least some possibility of being deemed criminally culpable. Because of that, the court is also concerned that it might need to assure individual counsel for each person subpoenaed. At that point, the evidentiary hearing will have become a full-blown adversarial proceeding but no one involved---the court, the plaintiff, or the subpoenaed parties - - will have any idea where it is going, if anywhere.

Finally, the court agrees that, given the paucity of grounds other than “possible prejudice to plaintiff and defendant, traditional investigation and use of the grand jury are more appropriate than a speculative, open-ended fact-finding hearing conducted under the aegis of the court.
The Court also noted what several of us have pointed out -- that the Attorney General only represented Aldan in his motions:
The Commonwealth only appears as counsel of record for Commissioner Aldan. Both parties mention this seeming anomaly, given that others were subpoenaed, but offer no explanation. See Government’s Response to Motion to Vacate Order for Evidentiary Hearing and to Quash Subpoenas at n. 1 (Jan. 29, 2010) and Reply to Response to Motion to Vacate Order for Evidentiary Hearing and to Quash Subpoenas at p. 1 and n.1 (Feb. 5, 2010). To avoid any confusion as to the breadth of the court’s order, it is the intent of this order that all subpoenas served relative to this motion be and hereby are quashed.

1 comments:

Saipan Writer said...

Thanks for giving us the link to the full decision, Wendy.