Sanction sought against a police detective, DPS, govt

The Office of the Public Defender has requested Superior Court Associate Judge Joseph N. Camacho to dismiss the theft case filed against habitual offender Peter Koichi Lemei over the alleged destruction of evidence.

In the alternative, assistant public defender Tillman Clark, counsel for Lemei, asked Camacho to bar the government from calling the alleged victim as a witness in this case.

In the alternative, Clark aked the judge to sanction police detective Andrew Taimanao, the Department of Public Safety, and the government “in the interests of public policy.”

“While dismissal is a disfavored remedy, Mr. Koichi has lost a piece of evidence that pointed to his innocence, which was outright destroyed or suppressed by a government agent and is now unable to use it to assist him at trial,” Clark said.

The defendant’s last name is confusing. Clark indicates Koichi as the defendant’s last name. Camacho indicates Lemei as the defendant’s last name. Previous court and police documents used Koichi as the last name.

Clark said dismissal is appropriate given the importance of the evidence and the inability of Koichi to reproduce it.

Alternatively, Clark said, the court should preclude the alleged victim from testifying.

“Permitting trial to go forward without any sanctions for destruction of evidence would be a violation of Mr. Koichi’s due process rights and would set an unwelcome precedent for future cases in the CNMI in which evidence is destroyed by state agents,” Clark said.

The defense counsel said the court must sanction DPS and the government in order to preserve the integrity of the judicial system and ensure that future cases in the CNMI do not involve destruction of exculpatory evidence.

Clark said DPS, with no meaningful rebuke whatsoever by the court, will get the message that it can destroy evidence with no consequence whatsoever. Clark said the government will get the same message.

The OAG charged Koichi with misdemeanor theft for allegedly stealing a purse from a woman, while she was sitting in a friend’s garage playing cards last April 10 at about 5:30am.

It was already in the middle of bench trial last Aug. 16 when Clark moved for mistrial for violation of Koichi’s due process rights under Brady.

Brady material refers to a piece of evidence known to the prosecution that is important for establishing the innocence or reducing the punishment of a defendant.

Clark asserted that the government suppressed evidence when a witness testified that a police detective showed her a photo lineup but the detective denied it.

Clark argued that to allow the bench trial to proceed would be to sacrifice Koichi’s right to due process, right to present a defense, right to a fair trial, and right to effective assistance of counsel.

This prompted Camacho, who presided over the trial, to suspend the proceedings to have a hearing on the issue on Sept. 14.

Last month, Camacho denied the motion for mistrial.

Camacho ruled that a continuance of the bench trial and re-call of witnesses will cure the law enforcement officer’s failure to provide exculpatory evidence.

Exculpatory evidence refers to evidence favorable to the defendant in a criminal case that exonerate the defendant of guilt.

Assistant attorney general Heather Barcinas, counsel for the government, argued that since the witness is not an identification witness, her non-identification is not Brady material.

Taimanao testified that he did not remember showing the witness any photographs, and that he was surprised to learn that the witness testified that she had been shown photographs.

In Koichi’s motion to dismiss, Clark said Camacho cleared up a previously unclear issue of fact.

Clark said by finding that Taimanao’s testimony was credible and a witness testimony was credible, the court made a finding of fact that Taimanao showed the witness a photo lineup with Koichi in it, that the witness failed to identify Koichi in that photo lineup, and that such evidence was subsequently suppressed by the government.

Clark said that no material have been discovered to Koichi despite the ongoing discovery request.

As such, Clark said, the only logical conclusion is that the evidence has been destroyed and lost forever.

Clark said based on the review of the state standards regarding the destruction of evidence, and the higher protections afforded under the CNMI Constitution, this court should apply a standard under the due protection section of the CNMI Constitution that is akin to the standard expressed by the Massachusetts Supreme Court in Commonwealth vs Henderson.

The Henderson ruling “requires a trial court to consider and balance the degree of culpability of the government, the materiality of the evidence, and the potential prejudice to the defendant in order to protect the defendant’s constitutional due process right to a fair trial.”

Clark said under the U.S. Supreme Court standard, Koichi would have to show he is unable to obtain comparable evidence by other reasonably available means.

Clark said Taimanao has testified that he cannot remember what happened or how he conducted the photo lineup.

Clark said the photo lineup itself has been destroyed and lost forever.

“There is no way Mr. Koichi can recreate that evidence,” he pointed out.