IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) CRIMINAL .CASENo.J:fJJ~ 7-12 4 ) ) 5 v. ) DECISION AND ORDER ) On Defendant's Motion to DisqualifY 6 EREK MANAKY, ) the Office of the Attorney General 7 ) Defendant. ) 8
INTRODUCTION II
12 This matter came before the Honorable Judge Michael J. Bordallo on November 7, 2012 o 13 Defendant's Motion to DisqualifY the Office of the Attorney General. The People of Guam wer 14 represented by Assistant Attorney General Christina Lum. The Defendant was represented b 15 Assistant Public Defender Maria Fitzpatrick. Having reviewed the memorandum and paper 16
17 presented, the court now issues the following decision DENYING the Defendant's Motion t
18 DisqualifY the Office of the Attorney General. 19 FACTUAL HISTORY 20 The Defendant was indicted on one count each of felony Family Violence and Aggravate 21 Assault for an alleged incident involving his wife. On September 1, 2012 the Dededo polic 22
23 precinct received a call that a man was beating a woman in the street near the caller's home.
24 Upon responding to the call, the police interviewed a second neighbor who claimed to have see 25 the victim run by her house, followed shortly thereafter by the alleged perpetrator. The account 26 of the two witnesses, as well as the physical and mental state of the victim, lead to th 27
28 Defendant's arrest and the current charges against him.
Page 1 of5 The Defendant has now filed a motion to disqualifY the entire Attorney General's Offic 2 from the case. The Defendant's argument is based on the fact that the second witness, a femal 3 neighbor, is employed by the Prosecution Division of the Attorney General's Office. Th 4 Defendant argues that the second witness "would want to please her co-workers and that becaus 5
6 she is on the payroll she would be more favorable to the prosecution." The People timely filed a
7 opposition arguing that any potential conflict has been effectively addressed by screening th 8 female employee from the case. For the following reasons, the Court agrees with the People. 9 DISCUSSION 10
11 The Defendant has filed a motion to disqualifY the Attorney General's Office ('AG'
12 Office') from prosecuting his case. The sole basis of his motion is the employment status of 13 witness to the alleged crime. The Defendant specifically argues that it is necessary to disqualif 14 the entire office because Ms. Eloise Bejosano, referred to as 'the second witness' in th 15 pleadings, is employed by the Prosecution Division of the AG's Office. This employment 16
17 according to the Defendant, "gives the appearance of impropriety" and compromises his case.
18 The People timely filed an opposition arguing that the AG's Office has addressed th 19 potential appearance of impropriety by erecting a conflict wall. This wall prevents the employe 20 from participating in the case, hearing any details of the case, or having access to the case files. 21 The People additionally stress that Ms. Bejosano is neither a prosecutor nor an attorney, but is 22
23 legal secretary with minimal involvement in any given criminal action. Finally, the People argu
24 that the Defendant must first call into question the efficacy of the existing conflict wall befor 25 seeking disqualification of the entire office. 26 Both parties rely on the Guam Supreme Court case of People v. Tennessen to suppo 27
28 their disparate positions. The defendant in Tennessen, a former police officer, was ultimate}
Page 2 of5 convicted of Theft of a Firearm and Official Misconduct for stealing two guns from an unrelate 2 case for his own personal use. At the time his indictment was issued, Tennessen was a witness i 3 an active criminal case against then Attorney General Douglas Moylan. In response to th 4
5 defendant's motion to dismiss the indictment for conflict of interest, the Superior Court judg
6 denied the motion and required the AG's Office to erect a conflict wall between Tennessen an 7 the Attorney General. 8 On appeal of his conviction, Tennessen was able to prove to that the conflict wall erecte 9 by the AG's Office had not been effective. In vacating his judgment of conviction and remandin 10
II the case for further proceedings, the Supreme Court elucidated when it becomes necessary t
12 disqualify the entire AG's Office. Disqualification may be necessary where there exists " 13 conflict based on a personal interest in the litigation or on a personal relationship with th 14 accused." People v. Tennessen, 2009 Guam 3, ~ 33 (citing People v. Doyle, 406 N.W.2d 893 I5 899 (Mich.Ct.App.l987). However, an examination of case law from multiple jurisdictions 16
17 revealed that "where conflict walls are effectively implemented, disqualification of the entir
18 office may be unnecessary." ld. at ~ 34. This lead the Supreme Court to conclude tha 19 "disqualification of the AG's Office would only be necessary if the particular conflicted attorne 20 were not properly screened from the case." ld. at~ 37. 21
22 In the present case, the conflict wall has not been breached and the Witness has neither
23 personal interest in the litigation, nor a personal relationship with the accused. These facts ar 24 not analogous to those in Tennessen. Tennessen's conviction was vacated after he was able t 25 offer proof that the conflict wall erected around the Attorney General had been breached. Th 26 evidence that Tennessen offered demonstrated that Attorney General Moylan, who supervise 27
28 and employed the prosecutors on Tennessen's case, had knowledge of the case in violation ofth
Page3 of5 court-ordered conflict wall. Additionally, the Attorney General had an established persona 2 interest in the defendant's litigation and a personal relationship with the accused as Tennesse 3 was testifying against him in a separate criminal matter. 4 The Witness's employment with the AG's Office does not impugn the prosecuto 5
6 assigned to the case, nor the AG's Office as a whole. No evidence has been presented t
7 establish that the Witness has a personal interest in the litigation or a personal relationship wit 8 the accused. In Tennessen, the defendant was testifying against the Attorney General in 9 separate case. The other cases heavily relied upon by the Supreme Court in reaching thei 10
11 decision to vacate Tennessen's conviction, also involved a close relationship between th
12 defendant and a prosecuting attorney involved with the case. People v. Choi, involved "a distric 13 attorney's office prosecuting a defendant who was suspected of killing the District Attorney' 14 personal friend." Jd. at ~ 42 (citing People v. Choi, 94 Cal.Rptr.2d 922, 926 (Ct.App.2000)). 15 Similarly, the case of People v. Doyle involved whether "the disqualification of a supervisin 16
17 prosecutor requires disqualification of the entire office." Jd. at ~ 33 (citing People v. Doyle, 40
18 N.W.2d 893, 899 (Mich.Ct.App.1987). 19 Because the Witness has been screened from the Defendant's case any potential conflic 20 of interest has been adequately addressed by the AG's Office. The Witness is not an attorne 21 within the Prosecution Division and there is no evidence of a personal interest in the outcome o 22
23 the litigation, nor a personal relationship with either the Defendant or the alleged victim. Unlik
24 Tennessen and the other cases examined by the Supreme Court, the Witness is a not a party t 25 the criminal action.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) CRIMINAL .CASENo.J:fJJ~ 7-12 4 ) ) 5 v. ) DECISION AND ORDER ) On Defendant's Motion to DisqualifY 6 EREK MANAKY, ) the Office of the Attorney General 7 ) Defendant. ) 8
INTRODUCTION II
12 This matter came before the Honorable Judge Michael J. Bordallo on November 7, 2012 o 13 Defendant's Motion to DisqualifY the Office of the Attorney General. The People of Guam wer 14 represented by Assistant Attorney General Christina Lum. The Defendant was represented b 15 Assistant Public Defender Maria Fitzpatrick. Having reviewed the memorandum and paper 16
17 presented, the court now issues the following decision DENYING the Defendant's Motion t
18 DisqualifY the Office of the Attorney General. 19 FACTUAL HISTORY 20 The Defendant was indicted on one count each of felony Family Violence and Aggravate 21 Assault for an alleged incident involving his wife. On September 1, 2012 the Dededo polic 22
23 precinct received a call that a man was beating a woman in the street near the caller's home.
24 Upon responding to the call, the police interviewed a second neighbor who claimed to have see 25 the victim run by her house, followed shortly thereafter by the alleged perpetrator. The account 26 of the two witnesses, as well as the physical and mental state of the victim, lead to th 27
28 Defendant's arrest and the current charges against him.
Page 1 of5 The Defendant has now filed a motion to disqualifY the entire Attorney General's Offic 2 from the case. The Defendant's argument is based on the fact that the second witness, a femal 3 neighbor, is employed by the Prosecution Division of the Attorney General's Office. Th 4 Defendant argues that the second witness "would want to please her co-workers and that becaus 5
6 she is on the payroll she would be more favorable to the prosecution." The People timely filed a
7 opposition arguing that any potential conflict has been effectively addressed by screening th 8 female employee from the case. For the following reasons, the Court agrees with the People. 9 DISCUSSION 10
11 The Defendant has filed a motion to disqualifY the Attorney General's Office ('AG'
12 Office') from prosecuting his case. The sole basis of his motion is the employment status of 13 witness to the alleged crime. The Defendant specifically argues that it is necessary to disqualif 14 the entire office because Ms. Eloise Bejosano, referred to as 'the second witness' in th 15 pleadings, is employed by the Prosecution Division of the AG's Office. This employment 16
17 according to the Defendant, "gives the appearance of impropriety" and compromises his case.
18 The People timely filed an opposition arguing that the AG's Office has addressed th 19 potential appearance of impropriety by erecting a conflict wall. This wall prevents the employe 20 from participating in the case, hearing any details of the case, or having access to the case files. 21 The People additionally stress that Ms. Bejosano is neither a prosecutor nor an attorney, but is 22
23 legal secretary with minimal involvement in any given criminal action. Finally, the People argu
24 that the Defendant must first call into question the efficacy of the existing conflict wall befor 25 seeking disqualification of the entire office. 26 Both parties rely on the Guam Supreme Court case of People v. Tennessen to suppo 27
28 their disparate positions. The defendant in Tennessen, a former police officer, was ultimate}
Page 2 of5 convicted of Theft of a Firearm and Official Misconduct for stealing two guns from an unrelate 2 case for his own personal use. At the time his indictment was issued, Tennessen was a witness i 3 an active criminal case against then Attorney General Douglas Moylan. In response to th 4
5 defendant's motion to dismiss the indictment for conflict of interest, the Superior Court judg
6 denied the motion and required the AG's Office to erect a conflict wall between Tennessen an 7 the Attorney General. 8 On appeal of his conviction, Tennessen was able to prove to that the conflict wall erecte 9 by the AG's Office had not been effective. In vacating his judgment of conviction and remandin 10
II the case for further proceedings, the Supreme Court elucidated when it becomes necessary t
12 disqualify the entire AG's Office. Disqualification may be necessary where there exists " 13 conflict based on a personal interest in the litigation or on a personal relationship with th 14 accused." People v. Tennessen, 2009 Guam 3, ~ 33 (citing People v. Doyle, 406 N.W.2d 893 I5 899 (Mich.Ct.App.l987). However, an examination of case law from multiple jurisdictions 16
17 revealed that "where conflict walls are effectively implemented, disqualification of the entir
18 office may be unnecessary." ld. at ~ 34. This lead the Supreme Court to conclude tha 19 "disqualification of the AG's Office would only be necessary if the particular conflicted attorne 20 were not properly screened from the case." ld. at~ 37. 21
22 In the present case, the conflict wall has not been breached and the Witness has neither
23 personal interest in the litigation, nor a personal relationship with the accused. These facts ar 24 not analogous to those in Tennessen. Tennessen's conviction was vacated after he was able t 25 offer proof that the conflict wall erected around the Attorney General had been breached. Th 26 evidence that Tennessen offered demonstrated that Attorney General Moylan, who supervise 27
28 and employed the prosecutors on Tennessen's case, had knowledge of the case in violation ofth
Page3 of5 court-ordered conflict wall. Additionally, the Attorney General had an established persona 2 interest in the defendant's litigation and a personal relationship with the accused as Tennesse 3 was testifying against him in a separate criminal matter. 4 The Witness's employment with the AG's Office does not impugn the prosecuto 5
6 assigned to the case, nor the AG's Office as a whole. No evidence has been presented t
7 establish that the Witness has a personal interest in the litigation or a personal relationship wit 8 the accused. In Tennessen, the defendant was testifying against the Attorney General in 9 separate case. The other cases heavily relied upon by the Supreme Court in reaching thei 10
11 decision to vacate Tennessen's conviction, also involved a close relationship between th
12 defendant and a prosecuting attorney involved with the case. People v. Choi, involved "a distric 13 attorney's office prosecuting a defendant who was suspected of killing the District Attorney' 14 personal friend." Jd. at ~ 42 (citing People v. Choi, 94 Cal.Rptr.2d 922, 926 (Ct.App.2000)). 15 Similarly, the case of People v. Doyle involved whether "the disqualification of a supervisin 16
17 prosecutor requires disqualification of the entire office." Jd. at ~ 33 (citing People v. Doyle, 40
18 N.W.2d 893, 899 (Mich.Ct.App.1987). 19 Because the Witness has been screened from the Defendant's case any potential conflic 20 of interest has been adequately addressed by the AG's Office. The Witness is not an attorne 21 within the Prosecution Division and there is no evidence of a personal interest in the outcome o 22
23 the litigation, nor a personal relationship with either the Defendant or the alleged victim. Unlik
24 Tennessen and the other cases examined by the Supreme Court, the Witness is a not a party t 25 the criminal action. The Defendant claims that the Witness will "want to please her co-workers,' 26 perhaps insinuating that the Witness might lie. If this is the Defendant's concern, it is addresse 27
28 by the ability of the Defendant to cross examine the Witness upon testifying.
Page4 of5 CONCLUSION
2 Based on the foregoing, the Court finds insufficient grounds to support a disqualificatio 3 of the Attorney General's Office. Accordingly, the court DENIES the Defendant's Motion t 4 Disqualify the Office of the Attorney GeneraL Further Proceedings are set fo 5
6 --+-(_-_1-_5__2013 at 9am. 7
9 SO ORDERED, this ~ay of January 2013. IO
II
I2
I4
I5
I6
I7
I8
I9
2I
Page 5 of5