Former PD found guilty and sentenced to 1-year probation

Pago Pago, AMERICAN SAMOA — The Trial Division of the High Court of American Samoa has found former Public Defender Michael White guilty of contempt of court and sentenced him to one-year probation under special conditions, including representing defendants in certain pending criminal cases.

White, along with his defense attorney, Marcellus Talaimalo Uiagalelei appeared before Acting Associate Justice Elvis P. Patea yesterday for the court to issue its decision on the matter after the court issued an Order to Show Cause (OSC) on why White shouldn’t be held in contempt of court for not fulfilling his duties as an officer of the court.

Associate Judges Su’apaia J. Pereira and Paepae I. Fai’ai assisted Patea on the bench.

White, who has been with the Public Defender’s Office for 11 years and has served as the director of the office for the past 4 years, suddenly tendered his resignation to the governor’s office last Thursday prior to Gov. Lemanu Peleti Mauga returning to the territory that evening.

The resignation was effective Friday, July 1 and apparently the information was not passed on to the court, which appeared blindsided when White was not present to represent a number of defendants at the next meeting of the court, which was Tuesday, July 5.  This led to Patea issuing an Order to Show Cause (OSC).

When the OSC case was called yesterday, Patea issued a verbal decision. He assured that the court would issue a written decision regarding this matter at a later date.

In his verbal discussion, the acting associate justice stated as background that the public defender’s responsibilities, which include representing as counsel without charge individuals arrested for criminal, felony and misdemeanor and immigration offenses including juvenile petitions. Regarding the position of public defender the Fono had enacted ASCA 4.0320 (b) stating that upon appointment by the governor and confirmation by the Fono, the public defender’s term is 4 years, “and shall serve until his successor is appointed and qualified.”

Patea stated, “It is clear to us that our constitution is extremely protective of a person’s rights to counsel and it’s also clear to us that our laws provide everything to make sure that the accused person who can not afford an attorney will never be left without an attorney.

“The fono mandates that the public defender shall serve until the successor is appointed and qualified and that means the territory shall never be without a public defender,” he said.

White’s decision to resign from his post was born out of desperation and extreme frustration, Patea noted. “We recognize the respondent’s concern for his physical and mental health and also his care for his family. However, the move by White to terminate his post and impact the rights of his clients does not sit well with this court.”

Patea recalled that White argued that once he resigned as public defender he could no longer appear and represent his clients including those having cases scheduled for hearing this past Tuesday, July 5.

White “believes that the entity known as Public Defender’s office is the attorney of record and not him personally,” Patea continued. “He also believes the entity is the licensed attorney.

“This is simply not true,” he stated.

The court pointed out that all attorneys, no matter how they are employed are bound by a code of ethics and regulation in the jurisdiction that allows them to practice their craft — whether in public, an entity or private firm, while in public may have its own employment regulation.

The court went on to say that a lawyer has additional professional responsibility that is dictated by the authority that licensed the lawyer in order to practice law. 

“Here in American Samoa, the Chief Justice is that authority.

“He has the authority to admit an attorney to practice law in the territory and to adopt rules of professional conduct,” Patea said.

High Court Rule 104 mandates that, “the conduct of an attorney and legal practitioner shall be governed by the American Bar Association’s model rules of professional conduct.

“Violation to the model rules shall result in appropriate disciplinary action.

“Upon termination of representation, a lawyer shall take steps to notify his clients and wait until the succession attorney is appointed.

“It’s clear to us respondent has failed to comply with requirements and was unable to fulfill his duties as an officer of the court,” Patea stated.

For this failure, “the court can impose fine or a term of imprisonment,” he said. “We find that the respondent’s conduct ending his employment and abandoning his clients has obstructed the administration of justice and therefore we find and hold him in contempt of court, pursuant to ASCA 3.0203.”

Patea then went to sentencing.

“Having considered evidence and submission of parties, the court orders that the imposition of sentence at this time is suspended, and White is placed on probation for a period of one year.

“During probation, respondent will remain law abiding and comply with all court orders including appointments to represent defendants in certain pending criminal cases.

“That is the court decision,” he affirmed.

Patea informed White that he is appointed to represent those defendants prepared for sentencing. For this month, a total of 28 matters are set for sentencing and White is appointed to represent all these defendants.

Furthermore, the court also appointed White to represent those defendants whose plea agreements were negotiated by him, including those plea agreements signed by him.

Cases scheduled for sentencing this week and next week will be pushed back and for the next two weeks, White will not be in court. The court instructed him to take care of his health first.

“He shall be in court in the last week of July where the court will take up all matters scheduled for sentencing that White has been involved with,” Patea said.

As far as payment, White shall keep track of his hours and submit his bill to the court. The Clerk of the Court is instructed to create a Court Folder for White’s record on his hours.