OPD accuses prosecutor of ethical violations

The Office of the Public Defender has accused a prosecutor of ethical violations and asked the Superior Court to impose sanction by striking the government’s proposed 44 exhibits in a criminal case and exclude them from being admitted at trial.

Assistant public defender Eden Schwartz, counsel for Ignacio Villagomez, said that assistant attorney general Clayton Graef, the prosecutor in Villagomez’s case, after being admonished about the same conduct in previous cases, willfully put evidence before the court, acting as the trier of fact in violation of the rules of evidence and the rules of professional conduct.

Division of Fish and Wildlife Investigation Unit officers arrested Villagomez last December for allegedly fishing using an illegal gillnet at a Lau Lau Beach dive spot.

Gillnet fishing is only authorized for special circumstances such as church village fiesta and only after applying for a special permit from the Department of Lands and Natural Resources secretary.

In Villagomez’s motion to strike yesterday, Schwartz disclosed that on Dec. 2, 2014, she was served with a set of marked exhibits in another criminal case. She said it was Graef who signed the “marked exhibits.” She said she had a phone conversation with him, explaining why the filing was improper in that case.

In particular, Schwartz explained that the proposed exhibits had not been admitted, contained hearsay, and otherwise lacked evidentiary foundation.

She further explained that because some counts in that case would be tried to the bench, the filing was particularly prejudicial to the defendant.

Schwartz said that, on the following day, she moved to strike the “marked exhibits” and the court granted the motion and sealed the filing that same day.

In another criminal case, Schwartz said that Graef signed another filing of documents whose admissibility was questioned.

Last March 18, the same prosecutor in Villagomez’s case filed 44 documents as exhibits with the court.

Schwartz said these documents include multiple images, and other documents containing assertions of various facts, which would likely be objected to on various grounds.

She said the court sealed those exhibits that same day.

Schwartz asserted that the proposed exhibits must be stricken from the record because they have not been admitted into evidence.

She pointed out that many of these documents are hearsay or contain hearsay within them.

Schwartz said based on Graef’s representations made in court he did seek counsel from his colleagues about the issue, and that he did not carefully read the trial setting order in Villagomez’s case.

“These representations alone bespeak a lack of diligence,” Schwartz said.

She said a sanction will have a deterrent effect on the Office of the Attorney General by sending a strong message that the OAG must properly train their new attorneys to ensure that their office’s standards meet with the ethical obligations that apply to all attorneys working in the Commonwealth.

Graef is expected to reply to the motion.