The public’s confidence in those who sit on the judicial bench is now in the spotlight following arguments made in the Supreme Court of Guam.

The issue discussed during an appeals hearing for the government corruption case against Public Health Director Art San Agustin and Chief Inspector Tom Nadeau.

Justices are now mulling over if the Superior Court presiding judge should be disqualified from sitting on the case after defense contends the conflict is clear. Defendant’s San Agustin and Nadeau want Superior Court Presiding Judge Alberto Lamorena removed from overseeing their case.

Defense Attorney William Brennan said, “We think that is a demonstration of the appearance of actual bias.”

Brennan argued before Justices on Monday, highlighting a previous Facebook post made by the Attorney General, Doug Moylan during his campaign. In the post, Moylan had included Lamorena as a professional reference. 

The presiding judge was handed the case after Judges Vernon Perez, Maria Cenzon, and Alberto Tolentino recused themselves due to conflicts.

However, Lamorena was apparently unaware his name had been used during AG Moylan’s campaign.

During the hearing, questions on the subject were exchanged.

Chief Justice Robert Torres: How can it be an endorsement when he didn’t know?

Defense Attorney William Brennan: It’s the perception of the endorsement, your Honor. It’s an objective standard. We are not looking whether we need to punish a judge. Judge Lamorena has no right to sit on the case…the question in this case is would a reasonable person question his impartiality. We think it is an endorsement in that regard for that purpose

Patrick Civille is the attorney representing Nadeau and he weighed in, “I accept Judge Lamorena’s statement that he was not aware of this but when he did become aware of it, he should have immediately taken action. But he didn’t.” 

Civille also questioned how recused Judge Tolentino was able to get back on the case.  

“I am concerned about the Superior Court taking a position that is just way out in left field…that a recused judge can sit on a disqualification motion. There is no authority for that. It’s not a practice that any other judge has endorsed or followed and how did this get reassigned to Judge Tolentino?” Civille said.

It’s concerns the Justices had for Judiciary Staff Attorney Suzane Hinkle, saying judges are selected at random.

Attorney Suzane Hinkle: Your Honor, the tradition and the practice as it was explained to me is that judges are not automatically disqualified based on a prior disqualification, even if the case is assigned for a recusal question. 

Chief Justice Robert Torres: In the same case?

Hinkle: In the same case.

Justice Carbullido: I don’t know, explained that to you but I question that advice.

Justices even cautioned Hinkle before allowing her to further respond.

Carbullido: If we were to follow your position, we would allow judges who have been recused to come in and affect the decision maker in this case. Is that really what you are asking us?

Hinkle: I just want to clarify… our point is the discretion is on the judge.

Carbullido: So you are asking us rather than use common sense, that this is the way it should be?

Hinkle: If the Supreme Court wants to clarify it, then yes, in that manner.

But the arguments only pushed the defense to call for their request to be granted.

“If we are going to use some unspoken policy and back door conversation in how to assign cases where we feel we’ve prejudiced that seems to be a due process claim that will start to materialize. We don’t want to be a cautionary tale. My client just wants a neutral and impartial arbiter,” Brennan said. 

The matter is being taken under advisement by the justices.