Wiseman denies motion to recuse from Ogumoro case

Superior Court Associate Judge David A. Wiseman denied yesterday a motion to recuse himself from presiding over the criminal case of former Department of Public Safety deputy commissioner Ambrosio T. Ogumoro.

Wiseman said no reasonable person with knowledge of all the facts in this case would conclude that his impartiality might be questioned.

“In fact, the court…believes that a reasonable person with knowledge of the surrounding facts of this case would find that the court acted as a neutral and impartial arbiter,” Wiseman said.

The judge reminded defense counsel Edward C. Arriola and all attorneys of their obligation to diligently review the merit or basis of their position before asking a judge to recuse himself or herself, just like with any other filing.

The Office of the Public Auditor charged Ogumoro with 15 criminal charges for his role in, among other things, shielding then-attorney general Edward T. Buckingham from being served with penal summons in August 2012.

Ogumoro, through Arriola, filed the motion to disqualify Wiseman from presiding over the case, citing the judge’s appointment of OPA legal counsel George L. Hasselback as special prosecutor for this case. He also pointed out that it was Wiseman who reviewed the affidavit of probable cause supporting an arrest warrant for Ogumoro; it was also Wiseman who issued the arrest warrant.

In his order yesterday, Wiseman said Ogumoro filed the motion on Sept. 2, 2014, and placed his own date of hearing for Sept. 3, 2014.

Wiseman said the motion was not properly on the court’s calendar due to it not being consistent with the Commonwealth Rules of Criminal Procedure 45, which requires a five-day period for motions to be heard and the court’s policy that it is the court and not counsels that sets the court’s hearing date.

Despite these improprieties, the judge said he addressed the motion in general and that, absent any objection, he would rule on the matter without a hearing.

Wiseman said that Ogumoro’s reasons are, in effect, an indirect attack on either the constitutionality, or in his opinion, wrongful procedures of several statutes and rules that govern criminal proceedings in the CNMI.

The judge said the appearance of impropriety that Ogumoro claims is based on the court performing judicial functions that it is constitutionality and statutorily authorized and obligated to do.

On the appointment of a special prosecutor, Wiseman said all Superior Court judges on a very frequent basis appoint the Office of Public Defender or private counsel to represent a party or parties in criminal, and some other cases before it.

In addition, Wiseman said, in special situations as in this case the authority exists to appoint a special prosecutor.

Wiseman said these acts of appointing counsel to represent a party, on either side, are judicial functions, and therefore, are not extrajudicial actions.

“To attach some notion that there is an appearance of impropriety to such actions is without merit. A reasonable person would look at such actions and view it as a judge just doing his job,” he said.

On the issuance of the arrest warrant, Wiseman said judges perform these functions all the time in the court as well as from their homes when police contact them at night, weekends, and other times that are necessary to process an arrest.

“It is a very basic and frequent function of a judge and any reasonable person would see it as such. It does not in any way create the slightest appearance of impropriety and such claim is also without merit,” he added.

Wiseman said a motion for recusal should be filed only after a diligent review of all the facts and a sincere belief that the motion is based on solid and meritorious ground.

Citing a previous ruling, the judge said judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.

Wiseman said a judge is presumed to be impartial, and Ogumoro bears the substantial burden of proving otherwise.

He said Ogumoro has failed to carry his burden and thus failed to demonstrate a right to recusal.

Aside from Ogumoro, OPA also filed criminal charges against former Commonwealth Ports Authority police chief Jordan L. Kosam, and former CPA police captain John T. Rebuenog along with former governor Fitial and Fitial’s former personal driver and bodyguard Jermaine Joseph W. Nekaifes for their participation in shielding Buckingham from being served with penal summons.

Superior Court Associate Judge Kenneth Govendo dismissed the case against Nekaifes at Hasselback’s request.

Last Feb. 19, Govendo found Buckingham guilty of all public corruption charges except one and sentenced him to 3.5 years in prison, all suspended. Govendo recused from presiding over the cases against the remaining defendants.