Justices vacate sanction order vs ex-prosecutor Weintraub

The CNMI Supreme Court has determined that Superior Court Associate Judge Teresa Kim-Tenorio abused her discretion in imposing a monetary sanction on then-assistant attorney general Elizabeth “Betsy” Weintraub, who served as a prosecutor in a sexual abuse of a minor case against a retired Army reservist.

In a seven-page opinion on Monday, the high court determined that Kim-Tenorio’s view of the law was “clearly erroneous” as she imposed the sanction although she could not, and did not, find that Weintraub had acted in bad faith.

The high court vacated the sanction that ordered Weintraub to pay $500 to a non-profit organization on Saipan that is dedicated to helping sexually abused children.

Associate Justice Perry B. Inos penned the high court’s opinion. Chief Justice Alexandro C. Castro and Associate Justice John A. Manglona concurred.

Weintraub told Saipan Tribune yesterday that she is grateful to the CNMI Supreme Court for reviewing the matter and reaching a decision supported by law.

“I am not the victim in this case, however, and the victim still deserves justice,” said Weintraub, who now resides in the U.S. mainland.

Now that the Supreme Court has corrected this issue, Weintraub said, her hope is that the Attorney General will correct the greater injustice to the victim by refiling the charges against the defendant, Michael Murphy.

In vacating the sanction, the justices said they are convinced that Kim-Tenorio relied on her “inherent authority” in sanctioning Weintraub.

The justices said the judge notably took issue with Weintraub’s allegedly inefficient case management, lack of preparation, and waste of resources.

The justices said the judge was particularly dismayed by the multiple continuances and Weintraub’s inability to meet the extended discovery deadline.

The justices said Kim-Tenorio found that to further extend the discovery deadline would prejudice Murphy.

The justices, however, found that such conduct “falls in the normal course of litigation and is done for the benefit of the victim.”

Citing precedent where the conduct at issue included failing to prepare defendants for trial and requesting a continuance, the justices said that, in Murphy’s case, the lack of preparation and requests for numerous continuances were done in the normal course of litigation.

Citing another precedent, the justices said that Weintraub did not lie or attempt to deceive the court.

While Kim-Tenorio may disagree with Weintraub’s conduct, her actions were nonetheless done on behalf of the Commonwealth, the justices said.

The justices said that because the court sanctioned Weintraub for conduct done in the normal course of litigation or for the benefit of the Commonwealth, they need to determine whether there was a finding of bad faith.

The justices said Kim-Tenorio specifically noted that “while [the court] sympathizes with all victims of sexual abuse cases, alleged or otherwise, [Weintraub]’s motives are irrelevant as she has a duty to advocate within the confines of professional ethics.”

The justices said Kim-Tenorio was incorrect.

The justices said since Kim-Tenorio sanctioned Weintraub for conduct done in the normal course of litigation via the court’s inherent authority, the prosecutor’s motives are paramount—the court was required to find that Weintraub acted with bad faith.

Here, the justices said, Kim-Tenorio determined that Weintraub’s conduct, although disagreeable, was not tantamount to bad faith.

In a written order on Sept. 6, 2017, Kim-Tenorio stated that Weintraub’s unprofessional conduct and violations of Model Rules of Professional conduct were not isolated incidents, but occurred continuously throughout litigation in the case against Murphy due to her lack of preparation and diligence.

Kim-Tenorio said the cumulative weight of the prosecutor’s conduct and violations has wide reach and directly affects multiple government agencies, the public, and most importantly, the alleged victim and Murphy.

Kim-Tenorio, however, denied Murphy’s motion for the court to declare that Weintraub committed a prosecutorial misconduct for her alleged false, improper, and prejudicial statement on the record in Murphy’s case.

Kim-Tenorio also denied Murphy’s request to issue an order for disciplinary investigation against Weintraub and to enjoin the Office of the Attorney General and its agents from making any extrajudicial comments.

The judge noted that she already dismissed the case against Murphy pursuant to the OAG’s motion for voluntary dismissal on Aug. 15, 2017.

Moreover, Tenorio said, she addressed the alleged prosecutorial misconduct during the order to show cause hearing on Aug. 29, 2017.

Weintraub then appealed to the CNMI Supreme Court. Assistant attorney general Robert Charles Lee served as counsel for Weintraub in the appeal.

In seeking to vacate the imposition of monetary sanctions, Weintraub asserted that Kim-Tenorio abused her discretion by imposing sanctions without making a determination of bad faith, considering her ability to pay a monetary fine, or supporting the judge’s findings of Model Rules of Professional Conduct violations with clear and convincing evidence.

Weintraub also argued that the sanction violated her due process rights in that she was not afforded heightened due process, sufficient notice of the charges against her, or a right to counsel.

She asserted due process violations in failing to make a finding of bad faith, not considering her ability to pay the fine, and relying on law that conflicts with U.S. Supreme Court precedent.