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Prosecutor seeks protective order in case against Thomas Siaumau

Chief Justice Michael Kruse [SN file photo]
CJ says it sounds like a “just in case” motion

Pago Pago AMERICAN SAMOA — Chief Justice Michael Kruse has taken under advisement a motion by Assistant Attorney General Woodrow Pengelly, asking the court to delay until trial, the disclosure of the identity of all government witnesses in Thomas Siaumau’s case.

During a hearing on the government’s motion for a Protective Order last week, Pengelly said the government is concerned about the safety of all the witnesses, and their identities should be kept under wraps until the trial date.

Pengelly argued that the government is fully aware of the defendant’s constitutional right to identify witnesses in his case; however, there are certain criminal cases where the court has ruled that the defendant cannot access the government’s witnesses until the day of trial.

“The government is seeking this motion based on the defendant’s criminal history. The government also believes that under Rule 16 of criminal procedure, we are allowed to delay the disclosure of the identities of witnesses,” Pengelly argued.

He added that the government would not oppose if the defense asks to release the identity of the witnesses one week before the case goes to trial. Pengelly said it’s the government's duty to ensure the identity of witnesses helping the government prove its case is well protected.

“So what do you want us to do?” Kruse asked. Pengelly responded that he is asking for a delay in disclosing the identities of the witnesses, in case the defense makes a motion against it.

Kruse laughed and told the government attorney that it sounds like a "just in case" motion.

“Do you really need this Protective Order from the court?" Kruse asked Pengelly, who didn't say anything.

“Don’t base your argument on a 'just in case' motion. Give us something that is more reasonable. If this is what the government wants, then tell us why," Kruse said.

“This is what we want," Pengelly said.

Kruse reminded the prosecutor that Rules and Case Law operates in the government’s favor. He then said something about a practice at the Attorney General’s Office when dealing with discovery in many of the criminal cases.

What the court has witnessed, according to Kruse, is that once the government receives discovery in many of the criminal cases, they just hand it over — the whole bundle of files — to the defense, but now, they’re asking to delay the disclosure of the identities of the witnesses, for this case.

"Why now?" Kruse asked Pengelly, who remained silent.

“Well, since I don’t have a response from the government, counsel, you need to come up with something that is more reasonable to the court. I don’t know if I’m missing something," Kruse said.

Pengelly asked the court for a 60-day continuance in Siaumau’s Pretrial Conference (PTC), to allow more time for the Honolulu Police Department to conduct its forensic review of all the physical evidence.

Kruse granted the motion for a continuance and set the PTC for July 6, 2018.

Siaumau’s attorney William Olson did not oppose either of the government's two motions.

Siaumau is facing six felony counts — including assault and weapons charges — and three misdemeanors stemming from an accident that occurred last December when someone shot at a police vehicle.