Motion to reconsider dismissal of charges vs Fitial under advisement

Superior Court Associate Judge David A. Wiseman has placed under advisement Office of the Public Auditor legal counsel George Hasselback’s motion for the judge to reconsider his dismissal of the criminal charges against former governor Benigno R. Fitial.

Hasselback also asked the court to allow four charges in the information to proceed, saying he has two independent sources of authority to prosecute those four charges.

The four counts refer to alleged criminal activity associated with the escort of former attorney general Edward T. Buckingham on Aug. 3 to 4, 2012.

Hasselback insisted that OPA has the authority to file the charges against Fitial because it was Wiseman himself and the Office of the Attorney General that gave him that authority.

Hasselback cited that on Aug. 17, 2012, Wiseman appointed him as a special prosecutor “to ensure the fair administration of justice.” He said the appointment was specifically limited to the investigation and prosecution of matters or persons connected to the charges filed by the government against Buckingham.

Hasselback also noted that on July 3, 2013, then-AG Joey Patrick San Nicolas appointed him as a special assistant attorney general to “complete accounting” of the events surrounding Buckingham’s escort.

Fitial’s counsel, Stephen J. Nutting, argued that Wiseman correctly found that OPA’s authority to prosecute the governor ceased when he no longer was the governor.

Nutting said Hasselback’s prior appointment to prosecute “the AG” was not an appointment to prosecute “the governor.” Nutting said Hasselback suggests that Wiseman failed to consider his prior appointment and such was clear error.

Nutting said it is more likely, however, that the court recognized that the prior appointment did not include a criminal action against “the governor.”

In his dismissal order last Nov. 6, Wiseman ruled that OPA has no authority to file the charges against Fitial, now a private citizen, and that the AG retains prosecutorial authority over such an action when the defendant is not currently in office.

OPA filed 13 charges against Fitial. The charges are related to the unauthorized release of a federal inmate, award of a sole-source American Recovery and Reinvestment Act contract, shielding of Buckingham from being served with penal summons, and the execution of a power purchase agreement contract related to the Commonwealth Utilities Corp.

Fitial pleaded not guilty to all charges.