High Court Denies AG’s Request for IP

Pago Pago - AMERICAN SAMOA

Following the High Court's denial of a request for an independent prosecutor (IP) in the case of Epifania Suafoa-Tauai, the former director of the American Samoa Historic Preservation Office, who is facing a misdemeanor assault charge, a motion for dismissal has been filed in the District Court.

Suafoa-Tauai was arrested and charged on February 26, 2025, with public peace disturbance, classified as a Class B misdemeanor, and third-degree assault, classified as a Class A misdemeanor. These charges stem from an incident on Feb. 16, during which she allegedly slapped a cashier at Kruse’s Store in Leone.

She pleaded not guilty to both charges on February 27 in District Court, and the case is scheduled for a hearing on July 28, 2025. 

An application by the Attorney General’s Office seeking the appointment of an independent prosecutor for this criminal case was filed in April 2025. It cited “prosecutorial discretion”.

The motion for dismissal by Suafoa-Tauai’s lawyer, followed the High Court's denial of the AG’s application for an IP.

APPLICATION FOR IP DENIED

The application was reviewed by Chief Justice Michael Kruse and Associate Judge Tunupopo Alalafaga Tunupopo on May 14, and in a ruling on the application, dated May 15, the court stated, “We conclude that the appointment of an independent prosecutor under A.S.C.A. 4.0801-0809 is not justified based on the facts presented, and therefore, we decline the application.”

According to the court's decision, no facts related to a preliminary investigation conducted by the Attorney General’s Office were presented before the application was filed. The judges noted, "This course of action clearly represents the opposite of what a section 4.0801 referral to an independent prosecutor entails. As events unfolded, the Attorney General’s Office has assumed the exercise of prosecutorial discretion."

Additionally, the court explained, "Among other things, a violation of a Class B misdemeanor does not warrant the appointment of an independent prosecutor. 

“Furthermore, while the defendant qualifies as a covered employee under the definition in 4.0801(b)(2), which includes any appointed, contracted, or career service director, she was subsequently discharged from her position as the director of the American Samoa Historic Preservation Office due to the pending charges. 

“Consequently, her discharge effectively removed her from the scope of 4.0801(b)(2), making her subject to prosecution through the Attorney General’s Office in the standard course of action."

APPLICATION FOR DISMISSAL OF CHARGES

The application for dismissal of the charges against Suafoa-Tauai was filed last Tuesday, according to Talanei, by the defendant’s legal counsel, Neal Connors. 

Regarding the dismissal motion, the defendant contends that she was denied due process and equal protection of the law as guaranteed under the American Samoa Constitution. 

The defense counsel contends that a “rush to judgment has occurred” concerning the complaint filed against his client. He articulated that the procedural sequence—beginning with the initial filing of the complaint, followed by the defendant's arrest and the subsequent inquiry for an independent prosecutor by ASG over two months later — has infringed upon Suafoa-Tauai’s due process rights, primarily due to ASG's failure to adhere to established legal requirements.

The attorney emphasized that Suafoa-Tauai, in her capacity as an appointed director of ASG, qualifies as a covered person under Title 4 of the American Samoa Code Annotated. This title necessitates a preliminary investigation for specified roles, including appointed contractors and agency heads.

Furthermore, he asserted that the defendant was charged and detained less than 10 days following an incident involving allegations of both Class A and Class B misdemeanors. While the statute permits the exception of a preliminary investigation in cases concerning Class B or C misdemeanors, the defense posits that the handling of this case is so fundamentally flawed that the complaint should be regarded as legally deficient and subject to dismissal with prejudice.

Connors also argued that ASG terminated Suafoa-Tauai’s employment contract on March 2 without just cause, citing the initiation of legal proceedings against her. 

He referenced a recent ruling from the High Court that denied the Attorney General’s request for an independent prosecutor, asserting that ASG mischaracterized its application and neglected to conduct the requisite preliminary investigation as mandated by the statute.

In summary, he concluded that ASG's actions demonstrate a significant procedural error, effectively “putting the cart before the horse.” 

The court’s acknowledgment of ASG's ongoing prosecution against Suafoa-Tauai reinforces the perception of inadequate adherence to due process.

District Court Judge Jon Clemens has scheduled a hearing on the motion to dismiss for July 28, thereby providing an opportunity for the court to rigorously assess the defense's claims regarding the procedural integrity of the case.