OPD: Preliminary hearings not intended as a sham

The CNMI Legislature did not intend for preliminary hearings to be sham proceedings, according to assistant public defender Heather M. Zona, but a right of defendants.

Zona made the declaration in a supplemental brief in support of Nelsin Saimon’s motion to compel the government to produce police records and information in his case. Saimon is facing charges for stealing and forging checks.

Saimon was arrested last Jan. 27 on charges of theft and forgery. The preliminary hearing was held last Feb. 5.

Zona had accused the Office of the Attorney General of turning the preliminary hearing in a domestic violence case against a woman into a sham proceeding by calling in to testify a police detective who is not the case agent and allegedly does not know anything about the matter.

Zona later asked the court to dismiss the case against her client, Pennie Lee Concepcion Cabrera.

The OAG is opposing Saimon’s motion to compel the government to produce the police report, witness statements, and any other physical evidence prior to the continuation of a preliminary hearing in the case.

Zona said the government aims to simply put an officer on the stand who will regurgitate the information in the declaration of probable cause for arrest to establish probable cause.

“This is improper, as the preliminary hearing is not intended as a proceeding for the government to simply waive its declaration of probable cause and rest on the same to establish probable cause,” Zona said.

She again noted that the government’s practice of withholding police reports, written statements and physical evidence it uses to establish probable cause does not comport with Saimon’s constitutional rights.

Zona said there is simply no opportunity to test the veracity of the lone officer to determine whether he or she is accurately reflecting the information provided by third parties to other third parties, among other things.

She noted that the government’s penchant for having a single witness testify to hearsay renders the testimony unreliable.

The OAG is opposing Saimon’s motion to compel the government to produce the police report, witness statements, and any other physical evidence prior to the continuation of a preliminary hearing in the case.

In Saimon’s motion to compel, Zona asked the court to order the government to provide the police records and information that a police detective had said he used to refresh his recollection and/or familiarize himself with this case prior to testifying at the preliminary hearing.

When asked for comments about OPD calling it a sham proceeding, assistant attorney general Teri C. Tenorio said she is compelled to charge only those cases of which there is evidence that an offense has been committed.

Furthermore, Tenorio said, all prosecutors must have a reasonable belief they can prevail at trial.

Last March 16, Associate Judge Joseph N. Camacho dismissed without prejudice the charges against Cabrera at Tenorio’s request. Dismissal without prejudice means the OAG may re-open the case in the future.