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Independent prosecutor last week deemed unconstitutional

By Fili Sagapolutele PAGO PAGO, American Samoa, (Samoa News, June 1, 2010) - The Attorney General’s Office hopes that a High Court hearing later this week on the Independent Prosecutor’s case will address controlling legal issues that the government cited in a motion last week, says Deputy Attorney General Jennifer Augspurger.

Associate Justice Lyle Richmond on Thursday granted Independent Prosecutor Fa΄amomoi Masaniai’s motion for a stay of the court’s May 18 ruling, which found the Independent Prosecutor statute unconstitutional.

Asked for reaction to the court’s Thursday decision, Augspurger told Samoa News on Friday that, "indisputably" the court’s order of May 18 found the Independent Prosecutor (IP) to be unconstitutional.

"Therefore, the Government maintains the appointment of Mr. Masaniai to the position of Independent Prosecutor became a "nullity" upon the issuance of that court order and his status became, by operation of law, that of a private citizen," Augspurger explained.

"As such, the Government recognized the need, indeed the duty, to protect the confidential documents and other documents and evidence in his possession and control when Mr. Masaniai held the position as Independent Prosecutor -- and ensure their safeguard until such time as a decision could be made as to whether there were matters that the Attorney General’s office could prosecute or until such time as a new special prosecutor could be appointed by the Governor -- the authority for which was specifically referenced in the court’s order," she said.

Further, Mr. Masaniai, who was no longer the Independent Prosecutor, was continuing to occupy government offices and was in possession of government property including a new vehicle, computers, and other items, she said.

"Having lost his status as Independent Prosecutor upon issuance of the court order, the Government was required to take steps to ensure that all items under the control of the former Independent Prosecutor were safeguarded," she points out.

Additionally, since the time of Masaniai’s appointment, 18 months ago, only one of the four Certificate of Identity (CI) cases has been filed.

"We were concerned with possible running out of the statute of limitation and recognized that Mr. Masaniai was not going to be able to file those matters (given the court’s finding of unconstitutionality) and our office needed to act quickly in order to preserve the right to prosecute," Augspurger explained.

"Hence, this was an additional reason for taking steps to gain access to documents and other evidence needed to prosecute the CI cases," she noted. "Given our position that by operation of law Mr. Masaniai ceased to be the Independent Prosecutor upon issuance of the court’s order, then under law all prosecutorial authority vested solely in the Office of the Attorney General."

She also explained that the government filed first thing Thursday morning a memorandum of law in opposition to the motion for stay filed by Masaniai.

"Our opposition papers, based on the law of this Territory and supporting Federal case law, addresses the fact that upon the finding of unconstitutionality Mr. Masaniai ceased to hold his formerly appointed position, that the court lacked the ability to enter a stay in this type of matter given the lack of authority for such relief under our statutes and rules of procedure, and that Mr. Masaniai’s motion was deficient and failed to satisfy the legal requirements as mandated by legal precedent," she said.

"Lastly, we raised the issue of Mr. Masaniai’s lack of standing to continue to operate as a prosecutor when he had stepped into the shoes of that of a private citizen upon entry of the court’s order finding the IP statute to be unconstitutional and therefore abolishing the Office of the Independent Prosecutor," she said.

She said it’s "unfortunate" that the court didn’t have time to review ASG’s [American Samoa government’s] memorandum of law before granting the stay motion during Thursday’s court hearing.

At the same hearing Thursday, the court also gave defense attorneys for Marie Ripley, Michael Fuiava Sr., and Rosemarie Huni time to provide legal briefs in the same matter.

Given the additional time that has been provided to defense counsels to prepare legal briefs and the fact that a further hearing has been set on this issue this week, the court will have an opportunity to review the arguments and case law as set forth in the Government’s opposition memorandum, said Augspurger.

She said the government is hopeful that at the hearing this week, "the important and controlling legal issues will be addressed by the Court."

Following the court’s verbal order on Thursday, the government cooperated fully and provided Masaniai keys to the office and the keys to the government vehicle he had been using, she added.

Gov. Togiola Tulafono last Tuesday issued a directive to cease all operations of Masaniai’s office and turn over to the police all records and files including ASG property. This came after consultation with the Attorney General’s Office.

Speaking on his weekend radio program, Tulafono says the only reason the government moved to close this office was based on the court ruling -- in order to preserve documents, information and ASG property.

He said there was no other purpose, but there is now criticism being lodged against ASG and its attorneys.

The Governor noted that with the court ruling, it means all employees of this office are now private citizens, who should not in be in possession of any government property or documents.

Togiola maintains that the court ruling that the IP statute is unconstitutional means this office is unconstitutional.

He says when the court rules the IP statute to be constitutional then this office will be constitutional.

However, the Governor pointed out that the court has now provided two conflicting rulings, referring to the court’s decision last Thursday which granted the motion to stay after ruling that the IP status is unconstitutional.

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