Prosecutorial misconduct finding vs Weintraub vacated

The CNMI Supreme Court has vacated the Superior Court’s finding that then-assistant attorney general Elizabeth “Betsy” Weintraub committed prosecutorial misconduct during a jury trial.

The high court justices determined that Weintraub’s conduct in the trial of David James Aguon was not as deliberate and reckless as amounting to bad faith.

Rather, the justices said, the finding of prosecutorial misconduct was based on Associate Judge Joseph N. Camacho’s erroneous assessment of her conduct and constitutes clear error.

“As such, we find the court abused its discretion,” said the high court’s ruling penned by Associate Justice Perry B. Inos and concurred by Chief Justice Alexandro C. Castro and Associate Justice John A. Manglona.

Weintraub prosecuted the case against Aguon on charges that he assaulted Navy veteran Christopher Broome inside the White and Black Bar in Garapan in March 2016.

Camacho, who presided over the trial, found that Weintraub had committed prosecutorial misconduct by deliberately disobeying the court’s suppression order.

Camacho specifically found that, by asking police detective Flora Aguon about the weight of the attacker listed in her report, then asking the detective to estimate the defendant’s weight, and then asking that the record reflect that the individual pointed out was the defendant, that Weintraub had circumvented the court’s suppression order to have the detective identify the defendant as the attacker.

In the middle of the jury trial in March 2017, Weintraub moved to dismiss the case against David Aguon. She said dismissal is for the best interest of justice after they discovered some new information.

Camacho granted the motion to dismiss.

Weintraub then, through a private counsel, appealed to the CNMI Supreme Court to seek reversal of the prosecutorial misconduct determination.

Atty. Joseph E. Horey argued for Weintraub during the appellate hearing.

Weintraub argued that she did not violate the suppression order when she inquired into defendant’s height and weight.

She asserted that the court did not demonstrate any intention to suppress inferences that defendant “had been—or might have been—the assailant.”

Weintraub further argued that the record is clear the court did not order the suppression of inferences until after detective Aguon completed her testimony.

In vacating Camacho’s finding of prosecutorial misconduct, the justices said they did not find that Weintraub willfully disobeyed the suppression order.

The justices said over the prosecutor’s objection, detective Aguon was expressly permitted to testify as to the assailant’s “height, weight, and all those other things.”

The justices said Camacho granted the defense leeway to question and impeach detective Aguon’s credibility based on the assailant’s characteristics.

Likewise, the justices said, Weintraub used that same flexibility to rehabilitate the same witness based on those characteristics.

“When Weintraub continued inquiring into the assailant’s height and weight—which had been initiated by the defense—she was doing so within the permissible scope of examination,” the justices pointed out.

The justices said they do not perceive Weintraub as having performed an impropriety and engaged in appropriate witness examination.

“We cannot say that merely completing the record, especially sometime after the alleged misconduct occurred, reflects bad faith tantamount to prosecutorial misconduct,” the justices said.

Last January, the CNMI Supreme Court determined that Superior Court Associate Judge Teresa Kim-Tenorio abused her discretion in imposing a monetary sanction in the amount of $500 on Weintraub, who served as a prosecutor in a sexual abuse of a minor case against a retired Army reservist.

Weintraub now resides in the U.S. mainland.