The High Court has denied the application by the Attorney General’s Office for appointment of an independent prosecutor for the criminal case against Epifania Suafoa Tauai, former director of the American Samoa Historic Preservation Office.
The application was heard by Chief Justice Michael Kruse and Associate Judge Tunupopo Alalafaga Tunupopo on May 14. A ruling dated May 15 stated, “We conclude that the appointment of an independent prosecutor under A.S.C.A 4.0801-0809 is not indicated on the facts before us and, therefore, decline the application.”
According to the decision, the court was not presented with any facts about a preliminary investigation conducted by the Attorney General’s Office before the application was filed.
Under the independent prosecutor law, the Attorney General shall conduct a preliminary investigation whenever the Attorney General receives information sufficient to constitute grounds to investigate whether any person described in subsection (b) may have violated any territorial criminal law other than a violation classified as a Class B or C misdemeanor or an infraction. Persons prescribed in this subsection of the law include:
- The Governor and Lieutenant Governor;
- Any appointed contract, or career service director, office/agency head, or other public official;
- Any member of the Legislature;
- Any Justice Associate Judge or Judge;
- Any Assistant Attorney General and any individual working in the Office of the Attorney General.
Suafoa- Tauai was arrested and charged on February 26 this year with public peace disturbance, a Class B misdemeanor, and third degree assault, a Class A misdemeanor.
The charges against her relate to in incident on February 16 in which she allegedly slapped a cashier at Kruse’s Store in Leone.
She pled not guilty to both charges on February 27 in District Court.
The judges said, “This course of action undeniably bespeaks the antithesis of a section 4.0801 referral to an independent prosecutor. As events unfolded, the Attorney General’s Office has preempted the exercise of prosecutorial discretion.”
“Among other things,” said the court, “A violation of a ‘Class B misdemeanor does not authorize the appointment of an independent prosecutor. Moreover the defendant while a covered employee withing the meaning of 4.0801 (b) (2) which includes any appointed contract or career service director was subsequently discharged from her employment as director of the American Samoa Historic Preservation Office owing to the pending charges. Her discharge effectively removed her from the ambit of 4.0801 (b) (2) rendering the defendant amendable to prosecution in the normal course of the Attorney General’s office…”
On Tuesday in District Court, Suafoa-Tauai‘s attorney Neal Connors filed a motion to dismiss the case against his client. District Court Judge Jon Clemens has set a hearing on the motion for July 28. The reason for the extended hearing date is because Connors will be off island for one month, starting next week.
