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By Steve Limtiaco

HAGÅTÑA, Guam (Pacific Daily News, Jan. 9) - Superior Court of Guam Judge Richard Benson, who last year presided over the criminal case against former Governor Carl Gutierrez, can preside over the latest case against Gutierrez, a judge decided yesterday.

The decision is a setback for government prosecutors, who wanted Benson disqualified from the case, which relates to the size of Gutierrez's government retirement check.

Benson last July dismissed all nine criminal charges in the original case against Gutierrez and former Retirement Fund Director John Rios, saying there is nothing illegal about making retroactive retirement contributions, as was alleged.

Gutierrez retired, started collecting a retirement check, then again started contributing to the Retirement Fund, including retroactive payments for the time he was collecting a check. In the end, his retirement check increased from about USD$38,000 a year to about USD$72,000 a year.

Lawmakers have since passed a law, at the request of the Retirement Fund, to prevent others from doing the same thing.

The attorney general's office continued to pursue the case, despite the dismissal, and a Superior Court of Guam grand jury on Dec. 16 indicted Gutierrez, Rios and former governor's Chief of Staff Gil Shinohara.

According to the indictment, Shinohara allegedly helped set paperwork in motion that allowed Gutierrez to get a significant bump in his retirement pay.

On November 30, prosecutors asked the court to disqualify Benson after he rejected a request to disqualify himself.

The attorney general's office has argued the following: Gutierrez appointed Benson as a judge; Gutierrez is a gubernatorial candidate so Benson could stand to be rewarded; and Benson sits on both the Supreme and Superior Courts, a situation for which no statutory authority exists, according to Pacific Daily News files.

But Pro Tem Judge Ramona Manglona, who was asked to decide whether Benson can remain on the case, yesterday issued an order stating that prosecutors failed to state sufficient reasons to support Benson's recusal.

"The people failed to present any facts that Gutierrez would 'reward' Judge Benson with a permanent position on the bench," Manglona wrote. "It is mere speculation that Gutierrez will run for governor, win the election and appoint Judge Benson."

And while Gutierrez in the past has appointed Benson to judicial positions, Benson was appointed to this case by presiding Justice Frances Tydingco-Gatewood, Manglona wrote. Therefore, Benson would not be deciding the case of the person who appointed him.

January 10, 2006

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