The Superior Court has denied four of the five motions filed by the defense attorney of a 17-year-old accused of raping a 24-year-old woman back in June 2019. One of the motions that were denied was the motion to dismiss for violation of his rights to a speedy trial.
Superior Court Associate Judge Wesley Bogdan denied four of the five dispositive motions filed by defense counsel Brien Sers Nicholas for 17-year-old Kenneth Thomas Blas Kaipat, who is charged with three different counts of sexual assault in the first degree.
Suspects who are minors are not usually identified in court stories but Saipan Tribune is making an exception in this case as the suspect is being tried as an adult.
Aside from the motion to dismiss for violation of the suspect’s right to a speedy trial, Nicholas also filed a motion to dismiss counts II and IV; a motion to compel discovery; a motion to suppress evidence; and a motion to make Kaipat’s juvenile records public.
Bogdan, in a 20-page order, denied the motions to dismiss for speedy trial violation, motion to dismiss Counts II and IV, motion to make public juvenile records, and motion to compel discovery, citing deficiencies in Nicholas’ motions.
“Defendant’s motions contain little or no meaningful discussion of the relevant case law, and do not apply such case law to the facts of this case. In fact, several of the briefing papers contain little to no citations whatsoever,” the judge said.
Bogdan said the defendant has not demonstrated actual and substantial prejudice as a result of pre-accusatory delay in his motion to dismiss for speed trial violation.
Bogdan noted that the defendant claims he had to spend over 10 months at Department of Correction, and that he was unable to attend school, ultimately violating his rights. However, court documents show that the defendant was detained in the juvenile facility, which is attached to the adult criminal facility, but is separated by sight and sound as legally required by both federal and CNMI laws.
“That facility has been inspected and approved as a juvenile facility. Additionally, while there is a presumption of release for juveniles, it can be rebutted when the Commonwealth makes a showing that release would be contrary to the welfare of society or the juvenile. Commonwealth statutes provide for pretrial detention because it is appropriate in some cases. Here, the court agrees with the Commonwealth that the fact that this defendant was detained in juvenile custody during the pendency of his juvenile case does not establish prejudice. Finally, the court finds the argument that defendant had to attend school virtually holds no merit. Due to the COVID-19 pandemic, nearly all students in the CNMI had to partake in virtual classes,” he said.
In regards to the order denying the defense motion to dismiss counts II and IV as “multiplicitous,” Bogdan said because sexual assault in the first degree and sexual assault in the second degree have at least one element that the other does not have, a conviction under either would not violate double jeopardy, and are not multiplicitous.
In denying the defense’s motion to allow for the public release or disclosure of the records of the suspect’s juvenile case, Bogdan said the defense has the right to access the juvenile records in this case in order to defend his client, but the instant motion does not by itself provide a compelling reason or show good cause to make a full public disclosure of his juvenile records.
“Defense counsel’s argument for the use of the entire record generated in the juvenile proceedings and/or witness testimony given in the juvenile case in this criminal trial following waiver of the juvenile court’s jurisdiction is totally undeveloped and unsupported by any legal citation or specific reference,” the judge said.
As for the defense’s motion to compel discovery, Bogdan said the defendant has not pointed to any item with particularity that the Commonwealth may be withholding.
According to court documents, the Office of the Attorney General charged Kaipat with sexual assault and other offenses in adult court after the court granted the criminal division’s request to transfer Kaipat’s case from juvenile court to adult court back in May.