OPD accuses OAG of turning prelim hearing into sham proceeding

The Office of the Public Defender has accused the Office of the Attorney General of turning a preliminary hearing in a domestic violence case against a woman into a sham proceeding by calling in to testify a police detective who is not the case agent and allegedly does not know anything about the matter.

Assistant public defender Heather M. Zona asked the Superior Court to dismiss the case against her client, Pennie Lee Concepcion Cabrera, saying the government failed to establish probable cause to warrant the filing of the charges.

Cabrera allegedly repeatedly punched her live-in boyfriend in the chest and ran him over with a car during an argument at their home last Feb. 7.

Cabrera, 25, was arrested for assault with a dangerous weapon, assault and battery, disturbing the peace, and reckless driving.

Police said the boyfriend had scratches on his left leg, which the girlfriend allegedly ran over with a car.

The preliminary hearing was held last Feb. 16. At the hearing, assistant attorney general Teri C. Tenorio, counsel for the government, called to the witness stand police detective Wally Emul.

Emul testified that Tenorio told him to read the declaration and testify at the preliminary hearing as to the contents in the declaration.

After Emul’s testimony, Tenorio told the court that she had the detective testify, rather than the case agent who might have provided information about the matter.

Tenorio noted that her actions were purposefully made in light of Camacho’s decision in another case in which the preliminary hearing was continued, and the judge ordered the prosecutor not to talk to the case agent/testifying witness in that case until the issues to be addressed were resolved by the court.

Tenorio stated she just does not want to impede her investigation.

When asked about OPD calling it a sham proceeding, Tenorio said she is compelled to charge only those cases of which there is evidence that an offense has been committed and the defendant has committed the offense(s).

Furthermore, Tenorio said, all prosecutors must have a reasonable belief they can prevail at trial when proceeding with charging decisions.

In Cabrera’s motion to dismiss filed last Monday, Zona said the CNMI Legislature deemed preliminary hearings a right to be enjoyed by defendants, and that there is nothing in the language of the code or subsequent interpretations of the proceeding to suggest the proceeding was intended to be a rubber stamp of a declaration of probable cause to arrest.

Zona said putting a witness on the stand who knew nothing about the case would not be in compliance with the intent or aim of the rule.

She said Emul had no personal knowledge of the case and was therefore not competent to testify.

Zona said the government sought to establish probable cause using Emul, who admitted he had no personal knowledge of the case and did not work on the case.

“Though the rules of evidence may be relaxed at a preliminary hearing, permitting someone to testify concerning matters completely outside of their knowledge and experience is not only preposterous, it violates the basic tenets of fairness and order in judicial proceedings,” she said.

Zona said Emul was not designated by anyone as an expert in this case, and had nothing to add to the government’s purported basis for probable cause.

Zona said it seems that Emul’s job was simply to read the declaration and regurgitate what he supposedly recalled reading.

She said Emul had no knowledge concerning the case other than what he read in the declaration.