OPD questions OAG ‘practice’ of filing detective’s affidavit but no complaint

Kennedy Masubed is escorted out of the Supreme Court courtroom by a Corrections officer after his bail hearing Monday afternoon. (Ferdie De La Torre)

The Office of the Public Defender is questioning the Office of the Attorney General’s “practice” of submitting in court a police detective’s affidavit in support of an arrest warrant in criminal cases but not accompanied by a complaint.

But assistant attorney general Chester Hinds, who is counsel for the CNMI government, asserted that the rule says the government needs to file a complaint or affidavit—or both complaint and affidavit. Hinds said the affidavit that indicates probable cause of the charges is the complaint.

Assistant public defender Jean Nogues and chief public defender Douglas Hartig brought up the OAG’s practice of filing only the detective’s affidavit during Monday afternoon’s bail hearing for Kennedy Masubed.

The OPD was appointed as counsel for Masubed, a Department of Corrections inmate who allegedly stabbed and wounded a male barber with a shiv. The barber had just cut his hair at the Department of Corrections in Susupe Thursday morning. Masubed allegedly admitted to police that he beat up the barber for being gay.

Superior Court Associate Judge Joseph N. Camacho ordered the parties in the case to file briefs on the OAG practice, saying the OPD’s concern has far-reaching ramifications. The OPD was ordered to file the brief on or before May 20, 2020. The OAG was given until June 30, 2020, to file an opposition. The motion hearing will be on July 8, 2020.

At the bail hearing in the Supreme Court courtroom, Nogues pointed out that, without the complaint, there is no charging document. Hinds said this was his first time to hear the argument. He said the arrest warrant was issued by the court after a police detective submitted an affidavit that found probable cause to charge Masubed.

Nogues said the rule requires the filing of a charging document because a defendant has the right to be informed of the charges. Hartig, who appeared at the hearing via teleconference, said the affidavit was not accompanied by a complaint. Nogues also pointed out that the affidavit itself is not a complaint. He said he does not see any reason to delay the preliminary hearing.

When Camacho asked Hartig how much time he needs to file a brief about the issue, Hinds questioned if the court is putting everything on hold in Masubed’s case. The prosecutor said OPD has no case law to support its argument so the court should just deny it. Hinds said what OPD is bringing up is a motion to dismiss when, in fact, the government has yet to file an information, which is the formal charging document.