Judge finds OAG negligent, dismisses sexual abuse case

The Superior Court has dismissed a sexual abuse case against a man after finding that it took the Office of the Attorney General over a year and 11 months to bring the suspect to trial since his arrest last year.

In his order Tuesday dismissing the case against Jeffry Manarang Fernandez, Associate Judge Joseph N. Camacho ruled that the OAG violated the defendant’s constitutional right to a speedy trial. He said the OAG was negligent or reckless by filing a clearly meritless interlocutory appeal that caused the delay.

Interlocutory appeal refers to a request for an appellate court to review a ruling by a trial court that is made before the trial court itself has concluded.

The case against Fernandez was dismissed with prejudice, which means the OAG can no longer re-file the charge against the 36-year-old Fernandez. That charge—sexual abuse of a minor in the first degree—is the sole charge in the case against Fernandez.

Camacho said the Commonwealth failed to show that Fernandez is responsible for the delay.

Although Fernandez filed several motions and asked that the original May 2018 trial date be postponed. Camacho said his actions did not significantly contribute to the delay.

In comparison, the judge said, the government’s interlocutory appeal caused the trial to be delayed by a year, which is enough by itself to trigger a constitutional speedy trial analysis.

According to court records, Fernandez was arrested on Jan. 25, 2018, for allegedly sexually abusing a 15-year-old girl on June 8, 2016. Fifteen days later, on Feb. 9, 2018, Fernandez was released after posting a $2,500 cash and $22,500 in unsecured appearance bond. The original bail is $25,000 cash.

On May 23, 2018, Camacho granted Fernandez’s motion to dismiss count 2—sexual assault in the first degree—as it was multiplicitous and violates the constitutional protection from double jeopardy.

Camacho, however, did not dismiss count I, the sexual abuse of a minor in the first degree.

On June 11, 2018, assistant attorney general Jonathan Wilbershied filed a motion to reconsider granting Fernandez’s motion to dismiss count 2. Camacho denied that.

On Aug. 3, 2018, almost two weeks before the trial, the government filed its notice of appeal to the CNMI Supreme Court.

The notice of appeal sought appellate review of both the court’s double jeopardy order and the court’s reconsideration order (interlocutory appeal).

On Aug. 6, 2018, based on the OAG’s filing of the notice of appeal, Camacho stayed any further proceedings and vacated the trial date.

The Superior Court’s clerk of court’s office filed notice of the record on July 11, 2019—11 months after the government filed its notice of appeal.

On Aug. 1, 2019, the government filed its motion to voluntarily dismiss the appeal.

The OAG stated in its appellate dismissal motion that it had not appealed the double jeopardy order dismissing count 2 within the 30-day time frame provided by the NMI Supreme Court rule.

The OAG said the government would face an “extremely high hurdle” in having to prove the Superior Court abused its discretion by failing to correct a “clear error” or “manifest injustice” in the Superior Court’s denial of the Commonwealth’s motion to reconsider.

The OAG also believed “that it is unlikely that this appeal will succeed in demonstrating that the Superior Court abused its discretion in denying the motion to reconsider.”

Last Aug. 6, exactly a year after the Superior Court stayed the proceeding in this case, the CNMI Supreme Court granted the government’s motion to dismiss its appeal.

Last Aug. 23, Fernandez filed a declaration in support of his motion to dismiss the case due to violation of his right to a speedy trial.

Last Oct. 4, Camacho heard all of the motions that had been stayed pending appeal. At the hearing, assistant attorney general Frances Demapan argued for the government. Assistant public defender Heather Zona appeared for Fernandez, who was also present.

At the Oct. 4 hearing, Camacho adjudicated the four motions that had been pending during the appeal and took the defendant’s speedy trial motion under advisement.

In his order Tuesday dismissing the case, Camacho said that, although Fernandez’s motions may have theoretically also contributed to the delay, this ultimately never happened because the Commonwealth’s interlocutory appeal stayed the Superior Court proceedings.

Additionally, Camacho said, the government’s argument that the clerk of court of the Superior Court was responsible for some of the delay because the clerk filed a number of requests with the CNMI Supreme Court for an extension of time to file the certified record is also unpersuasive.

This is because any delay attributed to the clerk of court also weighs in Fernandez’s favor for speedy trial purposes, the judge pointed out.

Camacho said under the particular set of facts in this case, he finds that the delay caused by the Commonwealth’s interlocutory appeal is neither valid nor justified because the government has a clearly weak position in its appeal of the double jeopardy order for a year.

Camacho said the government’s appeal of his reconsideration order was clearly weak.

The judge said the weakness of the appeal of the reconsideration order is evidenced by the Commonwealth’s act of voluntarily dismissing its appeal of the reconsideration order.

Camacho noted that the Commonwealth conceded that its position in its appeal of the reconsideration order was weak when it stated in its motion to voluntarily dismiss appeal that “the Commonwealth believes that it is unlikely this appeal will succeed.”

Additionally, Camacho said, the Commonwealth was negligent in bringing and maintaining its appeal of the Superior Court’s double jeopardy order because the government failed to file its appeal of the court’s double jeopardy order within the 30-day time frame specified by the CNMI Supreme Court rule, thereby making the court’s double jeopardy order unreviewable by the CNMI Supreme Court.

Camacho said the government’s assertion that the delay caused by its appeal “was not intentionally calculated to hamper the defense” rings hollow and is unpersuasive.

Camacho said for almost two years, Fernandez has been ordered to stay away from his wife and children as a condition of his bail. This is no small matter, Camacho said, as the defendant has missed spending valuable time with his family, the loss of which can never be recovered.