A defendant in a sexual assault case argues that it is now impossible for him to obtain a fair trial after a police detective threw away the notes that are necessary for him to build his case.
Joseph Seman Epina, through assistant public defender Heather M. Zona, asked the Superior Court to dismiss the charges of sexual abuse of a minor in the first degree, assault and battery, and disturbing the peace.
In the alternative, Zona said, the court should sanctions the CNMI government.
Zona said the court should dismiss the case on the grounds that the prosecution violated its obligation by failing to provide police notes prior to the memory taint hearing in this case.
She said the prosecution will not be able to provide those notes ever, even for trial.
Associate Judge Joseph N. Camacho conducted a memory taint hearing over many days in August 2018 to determine the reliability of the girl’s memory.
Zona said the Department of Public Safety had evidence that was relevant and material to Epina’s case—notes taken by a then-detective about the investigation, including interviews of Epina’s accuser.
She said those notes were at least used by the detective’s police report.
Zona said the defense requested the notes in March 2016 but they never were provided.
Zona said evidence is now unavailable to the defense because the detective threw out her notes in November 2017 without producing them to the defense.
She noted that the detective testified that she threw away her notes from this case because she became an evidence custodian.
The defense counsel said defendant cannot have a fair trial without the exculpatory evidence, and he cannot adequately cross-examine the detective or his accuser.
Zona pointed out that the detective’s notes in this case are material to the manner in which she (detective) conducted the investigation, and whether there ever was a viable case at all.
Zona said the prosecution violated Epina’s due process rights by failing to disclose all evidence that might be favorable to him.
The lost evidence, she said, was material to Epina’s defense and failure to preserve the evidence constitutes bad faith. Even without that, Zona said, it also violates Epina’s due process.
The 45-year-old Epina is facing charges for raping a then-12-year-old girl on March 12, 2016.