Former attorney general Edward T. Buckingham has moved to dismiss the criminal case filed against him and also asked to court to strike an order declaring him a fugitive from justice.
Attorney Brien Sers Nicholas, counsel for Buckingham, also disclosed to the court an alleged confidential letter dated Jan. 25, 2012 sent by Office of Public Auditor Michael Pai to Gov. Benigno R. Fitial.
Nicholas said the letter concerns the OPA's investigation into the “factual circumstances” forming the basis for the three counts of the initial information filed against Buckingham by OPA counsel George Hasselback.
Nicholas said based on his review of the letter, OPA deemed the “matter closed and it [OPA] will make no further comments regarding the investigation or its findings and recommendations.”
The lawyer said because of the confidentiality of the “matter” as disclosed in the letter, he did not attach a copy of the letter.
However, he said, at the hearing he will provide the court a copy of such letter for court's review.
In Buckingham's motion to reconsider the court's order denying his motion to quash the arrest warrant, Nicholas said the issuance of the bench warrant in the amount of $50,000 cash for the arrest of Buckingham and the subsequent denial of his motion to quash the bench warrant were in errors as a matter of law.
Nicholas said as a matter of law, the prosecution of any “violations of Commonwealth law” is specifically reserved for the Office of the Attorney General.
The lawyer said the Legislature's futile attempt to cloth the OPA with “criminal prosecutorial powers” is an unconstitutional intrusion by the Legislature into the constitutional responsibility of the Executive Branch vis-à-vis the Office of the Atorney General.
He said it is undisputed that Hasselback is prosecuting this case under the misguided view that he is an assistant attorney general for the Commonwealth.
Nicholas said Hasselback is not an AAG contrary to his beliefs, but a legal counsel for OPA.
The lawyer said actual service of the summons and not knowledge of criminal charges, confers personal jurisdiction over an accused as a matter of law.
Nicholas said the penal summons issued was not a lawful order of the court as it was not signed by a judge contrary to Commonwealth Rules of Procedure.
He said it is undisputed that the penal summons issued in this case against Buckingham was signed by the clerk of court and not a judge as specifically mandated by Criminal Rules.
“Given that this court never had jurisdictions in this case, the denial order in this case classifying Buckingham as a fugitive must therefore be stricken as a matter of law because it is a void judgment issued without jurisdiction,” the lawyer added.
On Sept. 11, 2012, Associate Judge David A. Wiseman issued an order declaring Buckingham a fugitive from justice.
“[Buckingham] is a fugitive of justice, and his argument that his absence is not willful and he has not attempted to conceal his whereabouts does not shed his fugitive status,” said Wiseman in the order.
Wiseman denied without prejudice Buckingham's motion to quash the $50,000 bench warrant that he issued when Buckingham failed to attend the hearing last Aug. 6.
The judge, however, stated that he will evaluate the defendant's motion on its merits and consider any other concerns regarding the service of penal summons and filed amended information if and when he returns to the CNMI.
OPA filed seven criminal misdemeanor charges against Buckingham.
The five charges were in connection with Buckingham's alleged hosting of a delegate candidate's party at Gov. Benigno R. Fitial's house in August 2010 and Buckingham's approval of a $400,000 sole-source American Recovery and Reinvestment Act (ARRA) management contract award in October 2010 to Michael Ada within days of stepping down as a Cabinet secretary.
The two charges-obstructing justice: interference with service of process, and misconduct in public office-were related to Buckingham's alleged use of police officers to escort him at the airport to avoid being served with penal summons between Aug. 3 and 4.