Ex-governor Torres’ case sees major shift

A significant twist in the ongoing legal saga against former governor Ralph DLG Torres occurred after judge pro tem Arthur Barcinas disqualified the CNMI Office of the Attorney General, including assistant attorney general James Robert Kingman, from prosecuting the case.

As Torres is facing charges of misconduct in office, among other allegations, the decision has caused a stir among local leaders and the community, as well as former prosecution.

Barcinas issued the order last Tuesday, which granted the defense’s motion for reconsideration and the motion to disqualify the OAG as prosecutors in the case.

As mentioned in the order, Barcinas also decided not to appoint a new special prosecutor, citing the inability to designate the Office of the Public Auditor for the role. Instead, the court deferred to the Executive Branch to “execute its prosecutorial authorities in the case.”

In the same order, Barcinas disqualified the OAG and Kingman from prosecuting a related case involving refiled charges of contempt and misconduct in public office against Torres.

The decision has caused backlash from several lawmakers in the community, including Sen. Celina Babauta (D-Saipan). “I am deeply disappointed in the recent ruling from judge pro tempore Arthur Barcinas. His decision to disqualify the Attorney General’s Office from prosecuting former governor Ralph Torres and to infringe upon the independent authority of our Attorney General to hire a special prosecutor is not only misguided but also undermines the very principles of justice and accountability,” she stated. “The defense’s motion for reconsideration of an issue settled literally years ago by previous pro tem judge Tolentino was due within 10 days and was instead late by hundreds of days. Judge Barcinas should never have ruled on the motion in the first place.”

She added, “His ruling, punting to the Executive Branch to appoint a special prosecutor, is concerning. The separation of powers in our government is clear: the Attorney General’s Office is entrusted with the responsibility to prosecute, independent of political influence.”

Babauta said the decision holding that Torres needed to be charged in his official capacity is just nonsense.

“As a jurist of many years, Barcinas should know perfectly well that there is simply no such thing as an official capacity defendant in a criminal context, as opposed to a civil lawsuit for deprivation of civil rights. As a pro tempore judge domiciled in Guam, judge Barcinas has concocted an unworkable rule for our CNMI that our AG’s dual duties as prosecutor and advisor to the Executive Branch are inherently in conflict. Yet Guam’s own Supreme Court has just held the opposite in a dispute between their governor and AG. Barcinas has not only overstepped his bounds but also compromised the integrity of our judicial process. The Office of the Attorney General should not be told to stand down and let the current governor prosecute the former governor. Judge Barcinas ruling is ridiculous. If judge Barcinas believes that the Attorney General’s Office is conflicted, perhaps he should take a moment to look in the mirror. He presided over a closely related civil case on appeal in the CNMl Supreme Court after ex-governor Torres lost his lawsuit against the House JGO Committee. He waited until the end of the Torres administration to issue his ruling that the case was moot. This was a case where ‘justice delayed is justice denied.’ Judge Barcinas is now handling the criminal case against ex-governor Torres in the CNMI Superior Court.” she added “Judge Barcinas had a clear conflict that he has totally ignored and his ruling accusing the AG’s Office of a conflict is akin to the pot calling the kettle black.”

Babauta added, “His decision appears to be an overreach that sets a dangerous precedent, potentially opening the door for political interference in judicial matters. Judge Barcinas’ ruling does not serve justice; rather, it erodes the public’s trust in our legal system and threatens the independent functioning of our judicial institutions. We must uphold the principles of fairness, accountability, and independence in our judiciary. The Attorney General’s Office must be allowed to carry out its duties without undue interference. Our community deserves transparency and justice, free from political maneuvering.”

Babauta then urged the appropriate authorities to review and challenge this ruling.

“Our Judiciary must step in and preserve the integrity of our judicial system and ensure that justice is served impartially and independently. This decision is so out of step with the law that a writ of mandamus may be appropriate to correct it. Furthermore, I urge our Judiciary to review and reassess Judge Barcinas’ role in the CNMI Judiciary considering his spotty judicial record in Guam, a record that reflects slow and twisted justice. A special court with the Judiciary of Guam dealing with judicial discipline filed formal charges of judicial misconduct against Barcinas in May 2015 and he apparently has not learned his lesson. Barcinas has also been admonished by the Guam Supreme Court for the appearance of bias in a major land case with implications for many island landowners. Judge Arthur Barcinas is alleged to have failed to promptly and efficiently dispose of cases under advisement in his court. Some matters took 300 to 800 days to be acted on when court rules state actions on motions must be taken within a 90-day or 120-day time window. Is it really in the interest of our Commonwealth to keep appointing a judge with such a track record to handle our islands’ most sensitive and consequential cases when our own judges are unable to hear them?”

In his own statement to the press, Kingman said he was not surprised by the ruling and that it was inevitable.

“Now that this judge has finally ruled that I am disqualified from prosecuting either of these cases, I believe that I am able to express myself without violating any of my obligations as a prosecutor.”

Kingman said Barcinas’ ruling is unattached from law, facts, and reason.

“It is, however, unsurprising and inevitable. Since I arrived and the new judge pro tem was appointed at the trial level to a case he was already hearing as a justice pro tem on the appellate level, it was clear that the normal operations of judicial conduct would not apply here.”

He added “That bleak conclusion has been enforced time and again. From accepting the argument that ‘investigation’ is not a ‘law enforcement purpose’ to claiming that investigation cannot happen before or after charging an offense, to refusing to issue a scheduling order of any kind—despite several motions to do so and representations otherwise—to issuing judgments without reviewing evidence, it has been clear to all that the fix was in.”

Kingman added Barcinas has overruled prior rulings in the same case and claimed that the sole prosecuting authority in the Commonwealth may not prosecute the Executive, despite the clear effort by the people to have a separate legal authority operating free of the will of the governor.

“This judge has, without a hearing, determined that a person living 8,000 miles away—who had never even heard of the defendant—is conflicted from prosecuting the case.

Kingman also pointed out that the ruling disqualifying him came is despite a conspicuous spiderweb of overlapping conflicts by these same exact attorneys.

“Presumably, they thought that their myriad efforts to drive me from the island would work and that they would not have to actually abase themselves with such an argument and decision. To that end, at least, I have succeeded. It is no coincidence that this ruling was made shortly after a pair protecting the federal executive. When there are so many months of unjustified delay, timing must be considered.”

Kingman added, “These islands, in an incredible act of courage and foresight, asked for the rule of law and not of man by joining the United States. The days of kings beyond reproach were supposed to be behind them. I do not know why the federal government has refused to assist the CNMI. That is what they are supposed to do when a jurisdiction demonstrates that it needs help, from the Osage to the Jim Crow South. But if there is a clearer signal that it needs oversight, I cannot think of one. This place, by no desire of its own, is where there is supposed to be a clear difference between how America and our geopolitical adversary operates. When it fails, we should all be alarmed. I will not be deterred by this ruling. The people should not be either.”

The legal challenges on the Torres case began in December 2021 when a Democrat-Independent-led House Judiciary and Governmental Operations Committee found then-governor Torres, a Republican, in contempt of a legislative subpoena for refusing to appear before the panel investigating his public expenditures.

On April 8, 2022, the OAG charged Torres with 12 counts of misconduct in public office and one count of theft, relating to the issuance of premium class airline tickets for himself and his wife, Diann T. Torres. Additionally, the OAG alleged one count of contempt for failing to comply with a legislative subpoena. Torres has consistently denied these charges.

Then-judge pro tem Alberto Tolentino dismissed the contempt charge against Torres on Aug. 23, 2022, citing that the prosecutor, J. Robert Glass Jr., had been exposed to privileged information regarding the non-appearance to the legislative subpoena. However, on October 26, 2023, Kingman refiled a separate charge of contempt and misconduct against Torres.

Torres’s defense team, comprised of attorneys Viola Alepuyo, Matthew Holley, Victorino Torres, and Anthony Aguon, argued for reconsideration of the disqualification order. They presented multiple points, including the interlocutory nature of the order, errors in the court’s reliance on House Legislative Initiative 17-2, misapplication of the Model Rules of Professional Conduct, the ineffectiveness of the OAG’s ethical screening, and the lack of a meaningful hearing for Torres.

In his order, Barcinas agreed with the defense, highlighting clear errors and manifest injustice in the previous ruling. He noted that the charges against Torres were inherently tied to his official capacity as governor, contrary to the earlier determination that they were personal.

According to Barcinas, he found the OAG’s ethical screening procedures inadequate. Attorney General Edward Manibusan had testified that he screened assistant attorney general Robert Glass from conflicts, but the judge found this screening to be insufficient and improperly documented.

In a related case, Barcinas found that Manibusan’s involvement constituted “switching sides,” leading to a broader disqualification of the entire OAG from the case. The judge also ruled that Kingman, having been influenced by Manibusan, was disqualified from serving as a special prosecutor.

With the OAG and Kingman disqualified, the court declined to appoint a special prosecutor, citing concerns over potential influences and deferring the responsibility to the executive branch.

Barcinas has scheduled a hearing for Oct. 14 at 10am via Zoom. Until a new prosecutor is appointed, all other issues in the matter will be held in abeyance.

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