The Office of the Attorney General’s filing of two motions to quash a subpoena sent by a defendant in a sexual abuse case which requires a prosecutor to appear in court and produce documents during her meeting with the alleged victim, was described by a lawyer from the Office of the Public Defender as a simple dilatory tactic.
Or as assistant public defender Heather M. Zona says it, “simply another effort by the OAG to avoid complying with its discovery obligations.”
Zona, who is counsel for Joseph Seman Epina, said the filing of the OAG’s motions is another move to frustrate the defendant’s constitutional right to evidence and delay the case.
“This case has been pending since March 2016—nearly three years—and Mr. Epina has been incarcerated that entire time,” said Zona in her opposition to the motions filed last Friday before the Superior Court.
The 44-year-old Epina is facing charges of raping a then-12-year-old girl on March 12, 2016. The girl told police that it was not the first time he had sexually assaulted her.
OAG charged Epina with sexual assault of a minor in the first degree, assault and battery, and disturbing the peace.
Epina, through counsel, subpoenaed assistant attorney general Teri C. Tenorio last Jan. 25, requiring her to appear before Associate Judge Joseph N. Camacho this Friday, Feb. 15, at a hearing on the motions to quash.
The subpoena directs Tenorio to produce all documents when she met with the alleged victim and all communications between her and the girl.
The subpoena also seeks reports drafted, edited, reviewed, or received by Tenorio that refer to meetings with the girl.
In the government’s motions to quash, assistant attorney general Robert “Charlie” Lee said Epina’s subpoena exceeds the scope of discovery available to him under the NMI Rule of Criminal Procedure.
Lee said the documents and communications Epina seeks are exempt from discovery and are expressly forbidden under the Rule.
Lee said the subpoena provides broad definitions of “documents” that include government memoranda, notes, emails, minute records, employment files, case files, correspondence, and various other articles that are just too numerous.
In Epina’s opposition to the OAG’s motions to quash, Zona said enforcement of a subpoena is within the court’s discretion.
Zona said the government’s claim that Epina is not entitled to discovery is wrong and misleading. She said the defendant has demonstrated that the information being sought is relevant, admissible, and has been articulated with specificity.
Zona said the government’s claims the subpoenas seek the production of “privileged communications and the work product of the OAG” is false.
Zona noted that attached to each subpoena is a statement that states the requests “do not seek attorney work product.”
She said a generalization of confidentiality is not enough to warrant quashing a validly issued and served subpoena.
Zona said the government specifically argues that Tenorio should not be forced to testify about when she met with the alleged victim.
Zona said there is no absolute bar on having a prosecutor testify.
In this case, she said, it appears Tenorio actually participated in tainting the memory of Epina’s accuser.
Zona said that, as detailed during the memory taint hearing, Tenorio met with the alleged victim several times, subjected her to a two-day interview that lasted several hours, and asked the girl the same questions that the many other interviewers had already asked her.
She said there is also a question as to whether the OAG is following its ethical mandates by proceeding with this case “despite knowing the girl has changed her story so many times and in such substantial ways.”
Zona said Epina has demonstrated a compelling need for the information, no other way to obtain it, and therefore Tenorio should be made to provide the information being requested.