Prosecutor: Ex-DPS commissioner, cop shouldn’t be allowed to sidestep jury trial

The Office of the Attorney General said the Superior Court should not allow former Department of Public Safety Commissioner James C. Deleon Guerrero and Police Officer 3 Jesse Concepcion to sidestep a jury trial by permitting them to present an affirmative defense at the preliminary hearing stage.

In the government’s brief filed in the Superior Court yesterday, assistant attorney general Matthew Baisley said Deleon Guerrero and Concepcion, both seasoned police officers, are presenting the affirmative defense that they believed a 15-year-old girl was 24, 19, or 18, depending on which of their statements one chooses to believe.

Baisley said according to the defendants, they need not present this defense to a jury of their peers—a defense that revolves exclusively around their credibility and the credibility of their statements—but instead should be permitted to sidestep a jury trial, and have this court grant a defense for which they have yet to produce a single piece of admissible evidence.

“While defendants’ brazenness is unparalleled, their position is easily answered,” the prosecutor said.

Baisley said defendants’ attempt to resolve a mistake of age defense without a jury has no support in the case law and offends settled legal principles regarding the scope of a preliminary hearing.

Baisley said it is also an attempt to convince the court to decide disputed fact and credibility issues that are squarely within the province of a jury of defendants’ peers to decide.

Strikingly, the prosecutor said, defendants wish the court to do all this without having entered a single piece of admissible evidence in support of their position.

“The court should decline such an extreme and legally unsupported approach, and find that defendants’ affirmative defense may not be decided at a preliminary hearing, but instead must be presented to a jury of defendants’ peers at trial,” he said.

Baisley said the affirmative defense of mistake of age is inextricably tied to the merits of the case, and therefore is inappropriate for the court to decide at a preliminary hearing.

Baisley said the defendants are attempting to convince the court to do what no other court in the U.S. has ever done: find that there is no probable cause, in spite of a confession from both defendants to having sexual intercourse with a minor girl, simply because they assert through counsel, without testifying themselves, that they thought a 15-year-old girl was 18, 19, or 24, depending on which of their statements is accepted.

At a preliminary hearing last Friday, Federal Bureau of Investigation special agent Haejun Park testified that Deleon Guerrero and Concepcion confessed during his interview that they had sex with a girl at a secluded San Antonio beach site in June 2013.

Park said Deleon Guerrero, 44, and Concepcion,45, were surprised when he told them that the girl was a minor and was then only 15 years old.

Superior Court Associate Judge Joseph N. Camacho continued the preliminary hearing to May 9, 2016 at 1:30pm after an issue arose regarding affirmative defense.

Camacho ordered the prosecution and the defense counsel to submit briefs on the affirmative defense issue.

The issue was that “in a prosecution under 6 CMC 1303-1309, whenever a provision of law defining an offense depends upon a victim being under a certain age, it is an affirmative defense that, at the time of the alleged offense, the defendant reasonably believed the victim to be that age or older, unless the victim was under 13 years of age at the time of the alleged offense.”

OAG charged Deleon Guerrero and Concepcion each with one count of sexual abuse of a minor in the first degree, two counts of misconduct in public office, and two counts of conspiracy to commit sexual abuse of a minor in the first degree.

Attorney Matthew J. Holley of Torres Brothers law firm is counsel for Deleon Guerrero, while attorney Richard Pierce is counsel for Concepcion.

The defendants are both under house arrest after posting $15,000 and $10,000 cash bail plus property, respectively.