Massage-Gate: Response from Buckingham is more of the same spin

February 5, 2010

A Reply to Response from Attorney General Buckingham was filed in the US District Court of the NMI today in regards to an evidentiary hearing in the case of Governor Fitial requesting that prisoner-masseuse, Qingmei Cheng be released from jail to give him a massage. It restates the request from the OAG that the court vacate the order for evidentiary hearing and quash the subpoenas. The motion, made in the name of Dolores Aldan, opens with a statement that the US government "apparently concurs that the CNMI is the real party in interest in this matter." This notion is taken from the Government's response's first footnote which stated:
The Government notes that the Office of the Attorney General of the Commonwealth of the Northern Mariana Islands filed the present motion solely on behalf of employee Dolores M. Aldan, presumably because she acted in her official capacity and her interests may conflict with those of the other witnesses. To the Government’s knowledge, no counsel has entered an appearance on behalf of the other witnesses. Because the Attorney General filed the initial motion to extend in the name of the C.N.M.I., presumably on behalf of all subpoenaed witnesses, the Government relies upon the Attorney General as the only known counsel of record for service of this response on the remaining witnesses, in accord with Fed. R. Crim. P. 49(b), and Fed. R. Civ. P. 5(b)(1).
The government's footnote points out that the AG has filed the motion only in the name of Aldan and the CNMI, but no attorney had filed a motion for Governor Fitial or the other witnesses.

AG Buckingham's response filed today states:
The Office of the Attorney General can and does represent all CNMI employees served with legal process of any kind in matters which effect the CNMI. In this case the fact that the CNMI employees were subpoenaed as witnesses to an event in which they were also participants does not lessen or obviate the duty of the Attorney General to represent the CNMI in "all legal matters."
Buckingham cited an Executive Order issued by Governor Froilan Tenorio in February 1994 entitled, "Legal Representation". He cited the Commonwealth Constitution, Section 11, Article III which states that the Attorney General is "responsible for ...representing the Commonwealth in all legal matters..."

That may be true, but should the government represent the governor in personal matters like removing a prisoner from jail to get a massage?

Buckingham claims that the "Government wants to go fishing with the court's help." He attached the affidavits of Governor Fitial and Department of Corrections Commissioner Dolores Aldan. He also attached as evidence the statements of DOC Capt. Georgia Cabrera, and DOC Officer Abigail Borja. Missing is a sworn declaration, statement or affidavit from the governor's son-in-law, Arnold Kaipat Seman who also allegedly accompanied the prisoner to the governor's house. All statements are vague and indicate that to determine what really occurred with the witness an evidentiary hearing would be necessary.

In their repsonse, the US Government stated:
The purpose of the evidentiary hearing is to discover and record the existence, or non-existence, of prejudice to the Government’s case. It will also serve to disclose and record the existence, or non-existence, of prejudice to defendant Cheng’s due process and/or civil rights. In short, it will either provide a clean record upon which the prosecution of Cheng may proceed without obstacle, or it will provide a basis for motions or actions brought by Cheng. As of the date of this filing, there is no evidence on the record – only unsupported assertions of counsel. There is no testimony, no sworn statements, no physical evidence. The Government believes an evidentiary hearing is an appropriately cautious measure to make such a record.
The AG considers the vague sworn statements as enough evidence that the case was not prejudiced.

AG Buckingham pulled out the "bad, bad media" card, which is fitting since the "kill the messenger" stance is one common thread that runs through every branch, department, and agency of the Fitial Administration. The response states: all equity and fairness, the CNMI and all of the individuals involved in the incident ought to be apprised of the nature of the proposed actions against them, rather than be subjected to whatever the charge-of-the-week happens to be. All played out in the local media. More reputations dragged through the mud. More speculation. More innuendos. More red meat for the mob.
Seriously, the Attorney General doesn't know that it's wrong to request that a prisoner be removed from jail? That it is wrong to follow through with a request to remove a prisoner? That it is wrong to assist in the removal?

The AG is also understating the facts when he states "All played out in the local media." Actually "all played out" in the international media. Of course the governor's reprehensible and arrogant act is publicized. All outrageous actions are, especially when they involve an elected official who has violated the public trust and the law.

The defense that the governor has a back problem is so ridiculous that it is absolutely insulting. Anyone knows that regardless of any medical condition a prisoner should not be released from jail. Every person knows that there are other masseuses on island, that there are licensed medical personnel and a hospital. I imagine no one would have faulted the governor if he even had a private plane take him to Guam for treatment, but the excuse that a masseuse-prisoner need to give him a massage challenges anyone's common sense and intelligence. It demonstrates that he feels he is above the law. His arrogance trumps his intelligence and morality.

Then there's this ridiculous statement that Buckingham made:
In the United States persons are mistakenly released from prisons and jails commonly. Release dates are miscalculated, good time is miscalculated, names are confused, dates of birth are confused, other administrative errors occur, etc. Jailers are negligent, administrative personnel are careless, persons exercise poor judgment. In none of these cases does it lead to the kind of actions undertaken by the Government in this case.
Is this man truly qualified to be the Attorney General? Seriously, in any of these cases he cites did the highest official in the state order that a prisoner be released to give a massage? Did the highest official request that a "mistake" be made? Did the highest official, who swore to uphold the law when taking the oath of office, ask for laws to be broken? No, the instances he cites were unintentional acts. The governor's act was intentional and self-serving.

If I were the judge and I read that statement I would be offended by the suggestion that this flagrant disregard for the law is compared to an everyday slip-up! This was not a "mistake"; this was not a "miscalculation"; this was not some type of "confusion"; and this was not an "error" as the AG suggested. This act was an intentional violation of the law. This was a premeditated, self-serving, calculated act that can not be merely excused. To attempt to do so makes a mockery of what is moral, right and just.

The AG appears to be grasping for a defense when he states, "Perhaps Aldan's judgment can be questioned, but the reaction of the Government indicates far worse judgment on the part of some officials in the federal government." Perhaps her judgment can be questioned? People should question it! It is outrageous and inexcusable. If the governor of Florida, California, New York or any other state had the audacity and stupidity to request that a prisoner be removed from jail he/she would have been forced to have resigned within a week of the incident being revealed. The commissioner and officials involved would have been terminated. This disregard of the law and blatant disobedience to the court should have consequences. Clearly, the fact that Aldan "tried to contact the AG and the marshals" indicates that she knew she would be violating the law.

Through this motion, the AG shows that he too is arrogant as he makes lame excuse after lame excuse to minimize the seriousness of this act. How on earth will people ever stop abusing their power if they continually get away with it? Why didn't the governor even issue a public apology? Clearly, those involved believe that they are above the law and will always have the opportunity to shift the blame, make excuses and continue disregarding the law with no consequences.

Buckingham takes the "Emperor has no clothes" defense a step further by mocking the government when he says, "The prisoner was never even released. Uh, yes she was, and the emperor had no clothes.

Buckingham concludes:
Aldan and the rest of the witnesses have been placed under suspicion of wrongdoing when the Government cannot even tell us what the wrongdoing is. These innocent parties have been vilified in the media and subjected to public ridicule. The affidavits and declarations attached herto show conclusively that no actionable misconduct occurred. The Government has not offered one shred of evidence otherwise.
Considering the very vague affidavits and declarations the government is wise to support an evidentiary hearing.

Agreement Violated
The agreement between the CNMI Department of Corrections and the United States Marshals Service Witness Security and Prisoner Operations Divisions clearly outlines the responsibility of the local government concerning release of prisoners. From the document:
The Local Government agrees to release federal detainees only to law enforcement officers of the Federal Government agency initially committing the federal detainee (i.e. DEA, ICE, etc.) or to a Deputy United States Marshal (DUSM). Those federal detainees who are remanded to custody by a DUSM may only be released to a DUSM or an agent specified by the DUSM of the Judicial District.
It appears clear that the Commissioner had no legal authority to release the prisoner or to take her out of the prison to the governor's house.

The agreement lays out how much the federal government will pay the local government for use of the facility. It also specifies that either party can request a modification to the agreement in writing. The federal government should consider modifying the agreement. They may want to have some say in the qualifications of the commissioner and the officers. They may also want to have some say in the dismissal of personnel for flagrant violation of policies.

They could also include:"No federal prisoner may be taken from the jail to give a massage to the governor."


Anonymous said...

Can't someone arrest Aldan and the Governor? How do we even know if Cheng wanted to go to the governor's house or if she was forced?

Anonymous said...

This is too tiring already. It is too much and blown out of proportion. Put it to rest, no one is interested anymore. Move on.

Anonymous said...

Yes it's tiring to have a governor who thinks he is above the law. It's tiring to have no acceptance of responsibility. It's tiring to have no end to the corruption.

Wendy said...

Anonymous 11:44

I'll post court documents until this is settled. Please feel free to move on if you find the posts tiring!

Anonymous said...

I don't find this blog tiring. I'm astonished at what this Governor has pulled off and how the events transpired. He needs a reality alert and it appears the USAO will be giving him one. This government is paralized by this bizzare event and many Special Advisors are wandering around in a daze trying to put a spin on this. Most construction and employee contracts are in a holding pattern. Notice of Personel Actions and employee resignations are just sitting inactive. No one has any authority to make any decisions except the Governor and he can't think straight. The number of people trying to leave the government this month is stunning.

Anonymous said...

How can anyone try to make sense of something so irrational? No matter what the AG says to defend this he's going to lose credibility. I think it is stunning that he didn't resign. What attorney would want to have to defend the governor who was caught with his pants down?

Anonymous said...

noni 3:09 What is astounding is that the guv doesn't resign. Do us all a favor guv and go settle in California where you can get some decent medical care now that under your watch CHC is also a mess.

Anonymous said...

Page three of the agreement between the feds and local government on detaining federal prisoners (thanks for the link) says that DOC has to comply with all kinds of officials policies and regulations. You know they violated them in taking Cheng to the governor's house. Now the questions is what can the feds do and better yet what will they do? It's obvious the facility is not a secure place for federal detainees.

Anonymous said...

Anon 11:44

You stink! How can we move on, we still have not resolved this equally stinking abuse of power by the Guv? We all know that, it is the guv's & cronies' & associates' strategy to make the public forget. But NO, we won't! Justice should prevail!

Hang'em high said...

9 days to go...tic tok ticx tok

Anonymous said...

How can anyone possibly think the Governor would resign when he just bought, I mean won the election. He will need a few more months to to recoup that money. Well, maybe not. He probably cleared more than that when he gave the umbrella permits to all the workers (Willie Tan). Probably got another chunk of change when he had the minimum wage postponed again. As long as the Tan Clan control these islands, only those in power will gain and everyone else will be held down. No wonder everyone is bailing. Wake up and smell the corruption.

lawnchair lawyer said...

The current AG just might find his ass run out of the CNMI, similar to what happened to him in Pohnpei?

Anonymous said...

ah! i've heard that somewhere. just wondering how true was that. Thanks lawnchair awyer.

Anonymous said...

The evidenciary hearing has been quashed by the judge. No more case against the governor. Let us all rest now. Biba Fitial.

Wendy said...

Anonymous 7:36 You may want to read the order that encourage the USAO to investigate and speaks of a grand jury hearing before you celebrate. I posted it above.

lawn chair lawyer said...

I'm astonished, guess I will have get another beer and respect the judge's ruling.
Five more years of this sort of crap?