Island of Guam

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Background

The island of Guam is an organised, unincorporated territory of the United States territories with its own established civilian government. The United Nations Special Committee on Decolonization lists it as a non-self-governing territoryi. The capital is Hagatna (Agana) and it consists of nineteen municipalities, with the U.S military maintaining jurisdiction over its bases, which cover approximately 29% of the islands land area. The economy is supported primarily by tourism and United States military presence.ii Guam is an official member of the Secretariat of the Pacific Community (SPC).

Guam’s indigenous people, the Chamorro’s, make up approximately 37 per cent of the population, with the remaining residents consisting mainly of Philippine, American, Chinese, or Japanese descent. It has a long history of European colonialism, and was under Spanish rule until 1898, when it was surrendered to the United States and formally ceded under the Treaty of Paris.

The Courts and Ministerial Division of the Superior Court, is the first point of contact for people seeking the services of the courts of justice, as this division accepts the filing of all legal pleadings, and is responsible for processing and distributing these documents appropriately.

The Supreme Court of Guam is the highest judicial body of the Government of Guam. The Court hears all appeals from the Superior Court and is subject to original jurisdiction only in proceedings where it is necessary to protect its appellate jurisdiction and supervisory authorityvi. The Supreme Court of Guam is the final judicial authority on local matters.

The District Court of Guam exercises exclusive original jurisdiction over all federal proceedings, and has the same jurisdiction as a district court of the United States.

The Legal system

The constitution is referred to as the Organic Act of Guam, 1950, and it has adopted a common law legal system modelled on the U.S. United States federal laws apply to Guam, and cases arising under federal law are heard exclusively in the District Court of Guam, which has the same jurisdiction as any other Article III district court of the United States.

Legal Aid

Court Appointed Counsel for Indigent Defendants:
The Miscellaneous Rules of the Local Rules of the Superior Court of Guam (the Local Rules of the Superior Court), r 1.1 provides for court appointed counsel for indigent defendants. This can either be a mandatory requirement, or a discretionary decision by the court. The court must appoint counsel where a person has been charged with:

• A felony;
• A misdemeanour;
• A petty misdemeanour (except Traffic Court matters);
• Juvenile delinquency for the commission of an act which would be considered a felony or misdemeanour if committed by an adult; and
• A violation of probation or a charge, which could amend a term of probation.

The court may appoint counsel where:

A person is charged with contempt and facing loss of liberty;

A person is seeking collateral relief from a judgement in a criminal matter; or

A person’s rights under the U.S. constitution of the Organic Act of Guam may be ‘substantially infringed’ without the appointment.

In either case, the defendant must be financially unable to obtain adequate representation as determined by a Financial Declaration, which is submitted by the defendant.

Counsel is appointed from the following services, in the below order:

• The Public Defender Service Corporation (PDSC);
• The Alternate Public Defender Office (where issues of conflict arise with the PDSC;
• The Private Attorney Panel; and
• Active members of the Guam Bar Association.

The primary organisation providing legal assistance is the PDSC, which is government sponsored. The PDSC aims to provide effective legal assistance to those unable to afford private counsel, thereby ensuring equal protection of their lawful rights, in accordance with prescribed ethics, laws, rules and regulationsxiii. Counsel appointed under the rules are to act for the defendant throughout the proceedings in the Superior Court, unless it is in the interests of justice to appoint alternate counsel.

Existing NGOs providing pro bono legal aid:
Legal Services Corporation - Guam
Guam also has a legal services program funded through the Legal Services Corporation, a private, non-profit corporation established by the United States Congress. However, LSC funded organisations are restricted from representing clients in criminal proceedings, unless they are appointed by a court or professional responsibility requires representation out of a situation arising from representation in a civil case. The need to increase pro bono legal assistance was recognised in 2011, and the Supreme Court of Guam initiated a Pro Bono Pilot Program, which urged all active attorneys practicing in Guam to ‘aspire to complete…50 qualifying pro bono hours’ for the calendar years 2012 and 2013. Active members of the Guam Bar Association are required to report the number of pro bono hours performed annually, even if no pro bono hours were performed

Number of lawyers (criminal/civil) if known: According to the Bureau of Labour Statistics, there were 120 employed lawyers in Guam as of May 2012. That is 1.97 jobs per 1000, are lawyers. The average annual income is $83,880

Source of Defendants Rights

National Sources of Defendant’s rights:
In 1950, a civil government of Guam was established with the Organic Act of Guam, which is the nations constitution. The Organic Act contains a Bill of Rights in s 1421b. Section 1421b(u) of the Organic Act extends application of parts of the Constitution of the United States to Guam. The Guam Code Annotated (G.C.A) is the authoritative publication of the permanent codes of Guam, and Title 8, Criminal Procedure, contains various protections to criminal defendants. Section 1.11 is specifically aimed at rights of the defendant in criminal actions.

International Sources of defendant’s rights:

• Universal Declaration of Human Rights- Customary international law: The Universal Declaration of Human Rights (UDHR) is now widely considered customary law, and is applicable in Guam. Article 10 entitles defendants to ‘full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of rights and obligations and of any criminal charge against the person’.
  
• International Covenant on Civil and Political Rights (ICCPR): As an unincorporated territory of the U.S., the international sources of defendant’s rights applicable in the U.S. apply equally to Guam. The U.S. is a signatory to the ICCPR, but not to the first or second optional protocol. The second optional protocol is aimed at abolition of the death penalty, however, Guam’s laws do not provide for the death penalty. Article 9, 14 and 15 of the ICCPR affords various protections to defendants involved in arrest and proceedings before a court or tribunal.

Rights of the Accused

Double jeopardy: Section 1421b(d) safeguards the principle of double jeopardy. These provisions mirror Amendment 5 of the U.S. Constitution, which is also applicable in Guam.

Legality principle: The G.C.A is not to operate retroactively unless expressly so declared. Statute is presumed to have only prospective effect unless expressly stated otherwise, or necessarily implied by legislative intent: see People of Guam v Camacho, 2013 Guam 3, at [10].

Presumption of innocence: A defendant is entitled to the benefit of presumption of innocence and the burden of proof is on the prosecuting authority to prove each element of an offense beyond reasonable doubt. A verdict of guilty removes this presumption of innocence and replaces it with a presumption of guilt. Accordingly, on appeal the burden is shifted to the defendant to show the evidence was insufficient to sustain a guilty verdict.

Standards of proof and standards for conviction: In determining whether there exists sufficient evidence to sustain a conviction, the evidence presented at trial must be reviewed to determine whether any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt. Section 90.21(a) states that ‘[n]o person may be convicted of an offense unless each element of the offense is proved beyond reasonable doubt’. No person can be convicted of an offence except by verdict of a jury, finding of the court or plea of guilty or nolo contendere.

Procedure with witnesses: Section 1.11(f) entitles the defendant to a compulsory process issued for obtaining witnesses. Subsection (g) entitles the defendant to produce witnesses on their behalf and to be confronted with the witnesses against them, in the presence of the court, subject to rules of hearsay and the admissibility of depositions in accordance with s 70.70.

Capital Punishment: the laws of Guam do not provide for the death penalty.

Ex Post Facto punishment: Article 1, s 9 cl. 3 of the U.S. Constitution forbids Congress from passing any ex post facto law, which is applicable in Guam. The Organic Act also provides that no ex post facto law shall be enacted in s 1421b(j) Bill of Rights. The U.S. Supreme Court has defined ex post facto as ‘every law that changes the punishment, and inflicts a greater punishment, then the law annexed to the crime, when committed’. The Supreme Court clarified in Gilbert v Petersl that only measures which are both retroactive and punitive constitute ex post facto.

Fair Trial Rights:

• Freedom from prolonged pre-trial detention: Section 1421b(e) of the Organic Act protects defendants from the deprivation of life, liberty or property without due process of law. These provisions mirror s 1 of Amendment 14 of the U.S. Constitution, which is also applicable in Guamli. Pre-Hearing detention is allowed only when necessary to ensure the safety of the inmate or security of the Department. The length of this detention is capped at 120 hours, unless a Disciplinary Hearing Officer or the Disciplinary Hearing Board approves a continuance.
• Freedom from punishment: Section 1421b(e) of the Organic Act protects defendants from cruel and unusual punishment. This reflects Amendment 8 of the U.S. Constitution, which is applicable in Guam.
• Right to counsel: Section 1421b(g) of the Organic Act protects the right of the accused to have the assistance of counsel for their defence. In accordance with s 1.11 (b), defendants are entitled to defend in person and with counsel. Every defendant unable to afford counsel has counsel assigned by the court at public expense, and at each stage of proceedings, from initial appearance onward.
• Right to habeas corpus: Section 1421b(l) protects the privilege of the writ of habeas corpus, but reserves the right to withdraw this privilege in the case of rebellion or invasion, or imminent danger thereof, if it is in the interests of public safety. The writ of habeas corpus is also codified in s 135.10 of the G.C.A, which states ‘Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint’. Chapter 135 of Title 8 contains the legal framework for the operation of habeas corpus in Guam.
• Right to medical care: Section 90.49(b), Title 9 of the G.C.Alv, states specifically that funds in the Corrections Revolving Fund may be used to provide medical, dental and pharmaceutical supplies for prisoners and detainees, including off-island prison or medical institutions. The Attorney General of Guam has released a memorandum clarifying that the legislative intent of this section is to pay for medical treatment for inmates and pre-trial detainees.
• Right to a fair trial: the prohibition against deprivation of life, liberty or property without due process of law is held in the s 1421(e) of the Organic Act. This also reflects Amendment 19, s. 1 to the U.S. Constitution, which is also applicable in Guam.
• Right to notice of charges: In all criminal prosecutions the accused has the right to be informed of the nature and cause of the accusation and to have a copy thereof. This right is codified in 1421b(g) of the Organic Act and s 1.11 of Title 8 of the G.C.A.
• Right to non self-incrimination: the Fifth Amendment to the United States Constitution provides that ‘[n]o person…shall be compelled in any criminal case to be a witness against himself’. Section 1.11 of Title 8 entitles the defendant to testify on his or her own behalf, and clarifies that failing to do so can not be construed as evidence against themselves. The U.S Supreme Court case of Miranda v Arizona is applicable in Guam, and prohibits the use of a defendant’s silence while in custody to be used as evidence of guilt. To do so would be a violation of the Fifth Amendment. This principle also extends to a defendant’s pre-custodial silence.
• Right to a speedy trial: Section 1421b(g) protects the right of the accused to a speedy and public trial. These provisions mirror Amendment 6 of the U.S. Constitution, which is also applicable in Guam. Section 1.11 also reinforces the rights of the defendant to a speedy and public trial.
• Right to a trial by jury: The Organic Act is silent on this matter, however, by virtue of 1421b(u), the Sixth Amendment to the US Constitution rights are applicable in Guam. This states that ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury’. Chapter 50 of Title 8, G.C.A governs the rules of procedure for grand juries.
• Right to impartial judge: Section 6105 of Title 7 of G.C.A states that any judge is to disqualify himself or herself in any proceeding in which his or her impartiality might reasonably be questioned. However, following complete disclosure to all parties involved in proceedings of the reasons for disqualification. If all parties agree, the judge need not disqualify him or herself. Subsection (b) sets out further circumstances in which the judge may need to disqualify him or herself, or seek consent from parties to continue to hear the matter.
• Right to appeal: The defendants right to appeal in any criminal action is enshrined in s 1.11(h) of Title 8. The rules of appeals are codified in Chapter 130 of Title 8, G.C.A. This states that appeals are allowed in all criminal actions in which the offence charged is not a violation. An appeal by the defendant is allowed from a final judgment of conviction, from an order denying a motion for a new trial, from any order made after judgment that affects the substantial rights of the defendant and pursuant to s 40.80 (appeal of an order affecting a conditional release). Section 130.15(e) also allows a defendant to appeal a judgment of conviction upon a plea of guilty or nolo contendere where the defendant has filed a sworn statement showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings under s 65.15(c)(motion to suppress evidence), and the trial court has executed and filed a certificate of probable cause for such an appeal with the District Court. This subsection was added when the right to review questions raised by s 65.15 before trial was removed. It was intended to permit a defendant to appeal a plea of guilty or ‘nolo’ that was based on the refusal of the court to grant a prior motion to suppress evidence.

Ways to protect rights

Exclusionary Rule or Nullity of Procedure: Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Civil Action: Chapter 161 of Title 8, G.C.A, governs the rules and procedures for claiming compensation for damages from criminal activities.

Motions: Before trial, the defendant can raise motions in relation to defects in the prosecution, defects in the indictment, information or complaint and motions to suppress evidence.

Pre-Trial Procedure

Police procedures

Complaint/information: An information may not be filed until there has been a preliminary examination of the case against the defendant, unless this right is waived by the defendant. The complaint shall be subject to the same rules of pleading as an indictment for information. If it appears from the complaint and supporting affidavits that there is probable cause to believe that an offense has been committed and the defendant has committed it, the judge shall issue a summons.

Arrest, Search and Seizure Laws:

• Arrests: The person arrested may be subjected to such restraint as is reasonable for the arrest and detention of the person. Section 20.15 of Title 8, G.C.A, allows for the arrest of a person without a warrant in certain circumstances, including where the officer has reasonable cause to believe the person arrested has committed an offence. There is no cause of action against an officer for false arrest. The person making an arrest must inform the person being arrested of the intention to arrest, the offense for which they are being arrested and the authority permitting the arrest. Reasonable force to execute arrest is permitted by s 20.45, Title 8, G.C.A
• Pre-trial detention: Pre-trial detention is permitted in circumstances which reasonably indicate that the person to be detained has committed, is committing or is about to commit a criminal offence. This detention must be only for the purpose of ascertaining the identity of the person detained and the surrounding circumstances of the offence in question. The detainee cannot be compelled to answer any inquiry. No detainee is to be held longer than reasonably necessary, and in any event, no longer than fifteen minutes, and is not to be extended beyond where it is first effected or in the immediate vicinity thereof. If, after inquiry into the circumstances, there is no probable cause for arrest of the detainee, they must be released. Chapter 25 of Title 8, G.C.A, governs release where a person is arrested without a warrant and does not demand to be taken before a judge. In this instance, release is at the discretion of the arresting officer. The arresting officer is to consider relevant factors when deciding whether to release the person. This includes risk of immediate harm and failure to appear where required
• Stops and Searches: The right of people to be secure in their ‘persons, houses, papers and effects’ is protected by s 1421b(c) of the Organic Act. This guards against unreasonable searches and seizures, and specifies that any warrant for search must have probably cause, and specifically describe the place to be searched the person or thing to be seized. These provisions mirror Amendment 4 of the U.S. Constitution, which is also applicable in Guam. A weapons search is permitted where a person is detained, or about to be detained, and the detaining officer reasonably believes the person is armed with a dangerous weapon and offers a threat to safety. The search may only be carried out to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If a weapon is found, it may be seized.
• Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures): Any weapon seized is only admissible as evidence in court if both the detention and the search that disclosed its existence, was authorised by, and conducted in compliance with, Chapter 30 of Title 8. A defendant has the right to raise before trial a motion to suppress evidence under s 65.15 of Title 8. Section 35.45 of Title 8 furthers this by affording a person aggrieved by unlawful search and seizures to move the court for the return of the property. If the motion is granted, the property is not admissible in evidence at any hearing or trial. A motion for a return of property of this sort may be treated as a motion to suppress under s 65.15. Also see People v Reyes, where it was held that only the one whose rights have been violated has standing to object to the introduction of illegally obtained evidence.
• Lineups and other identification procedures: Lineups: On prosecutor’s motion, the court may order the defendant to appear at a reasonable time and place and under such conditions as the court may provide to appear in a line-up.
• Other identification procedures: On prosecutors motion, the court may order the defendant to appear at a reasonable time and place and under such conditions as the court may provide to speak for identification by witnesses to an offense, be finger-printed, pose for photographs not involving re-enactment of the scene, try on articles of clothing, provide samples of handwriting, permit the taking of blood samples, hair and other materials which involve no unreasonable intrusion, and submit to a reasonable physical or medical inspection of their body.
• Interrogation:
  • Before formal charge in court: The Organic Act states that no person shall ‘be compelled in any criminal case to be a witness against himself’. Unless a defendant has waived the privilege against self-incrimination, testimonial evidence that is a product of custodial interrogation is inadmissible.
  • After Defendant is formally charged: Rule 611 of the Guam Rules of Evidence allows the court to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. The court may exercise this control to protect witnesses from harassment or undue embarrassment.
  • Enforcing the Rules (procedures to protect against illegal interrogation)
    Right to Counsel: Section 20.65 provides the right of an arrestee to see an attorney. Any officer who refuses this right ‘shall forfeit and pay to the person arrested the sum of five hundred dollars.

Court Procedures

Pre-Trial:

• Initial Court Appearance: Any person arrested without a warrant has the right to go before a judge of the Superior Court without delayl. At initial appearance, the court must inform the defendant of the complaint and any affidavits filed, the right to prosecution by indictment where applicable, the right to retain counsel, of the right to request assignment of counsel, the general circumstances under which he may secure pre-trial release, that they are not required to make a statement and that any statement made may be used against them. The court is to ensure the defendant has the assistance of counsel if they desire. The court is to assign this if the defendant is financially unable to employ counsell. The defendant is not to be called upon to plead, is allowed reasonable time and opportunity to consult with counsel, and shall be released in accordance with Chapter 40 of Title 8, G.C.A.
• Charging Instrument: the Fifth Amendment to the US Constitution, which is applicable in Guaml, states that ‘[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Mlitia when in actual service in time of War or public danger’. However, the annotations to s 1.15 of Title 8, G.C.A states that ‘[t]he Elected Governor Act , which extended the 5th Amendment of the U.S. Constitution to the territorial government of Guam, did not make grand jury indictments mandatory in the prosecution of “ infamous crimes” by the territorial government’. As such, s 1.15 requires that any felony together with any related misdemeanour is to be prosecuted by indictment. If this right is waived, a preliminary hearing is to be held and an order issued requiring the defendant to answer under s 45.80 Title 8 G.C.A. In this instance, the defendant may be prosecuted by indictment of information. All other offences are to be prosecuted by complaint.
• Preliminary Hearing: If the defendant waives the right to prosecution by indictment, and the right to preliminary examination, the court shall hold the defendant to answer, and order the prosecution to file an information charging the defendant with the offence charged by the complaintl. At preliminary examination, the court is to take evidence in the same manner as triall.
• Pre-Trial Motions: Any defence, objection, or request capable for determination without trial, can be raised before trial by motion. This includes any defence and objections based on defects in the institution of the prosecution, or based on defects in the indictment, information or complaintl. Motions to suppress evidence, requests for discovery and requests for a severance of charges or defendants can also be raised.
• Discovery: At any time after first appearance upon noticed motion by the defendant, the court is to order the prosecution to disclose, or permit the inspection and copy of, the following material and information within their possession or control, to the defendant:
  • Name and address of any intended witnesses.
  • Any written or recorded statements made by the defendant.
  • Any expert reports or statements.
  • Any books, papers, documents, photographs or tangible objects intended to be used at trial obtained from the defendant.
  • Any record of prior criminal convictions.
  • Whether there has been any electronic surveillance of conversations to which the defendant was party to.
  • any material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce punishment.
  This is subject to s 70.20, which outlines matters not subject to discovery by the defendant. This includes legal research, records or any document to the extent that it contains opinions, theories and conclusions of the prosecutions, and an informant’s identity where it is a prosecution secret and the failure to disclose does not infringe constitutional rights of the defendant. An informant’s identity may not be kept secret if they are to be called as a witness at trial. On notice of motion, the court may order the defendant to disclose to, or permit the prosecution to inspect and copy any report or statement of an expert, made in connection with the case, including results of physical or mental examinations and of scientific tests, experiments or comparisons which the defense attorney intends to use in the trial. The court may also order, upon motion by the prosecution, the defendant to state the nature of any defense which is intended to be used at trial, and the names and addresses of any person intended to be called as a witness.

Trial:

• Nature of the Trial: Guam practices an adversarial system of trial. This involves both the prosecution and defence making opening statements, presenting evidence in support and in rebuttal, and each concluding their case. If the trial is by jury the court shall then instruct the jury.
• Lawyers: Lawyers conduct is governed by the Guam Rules of Professional Conduct, adopted from the 2002 American Bar Association Model Rules of Professional Conduct)
• Expert Witnesses: The court may appoint expert witnesses, and order parties to show cause why an expert witness should not be appointed. The court may appoint any witness agreed upon by parties or may appoint a witness of its own selectionl.
• Judges: The duty of the judge is to control all proceedings during trial, limit the introduction of evidence and argument of counsel to relevant and material matters, and to do this with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.
• Victims: Victims have the rights afforded to them under Chapter 160 of Title 8, G.C.A. Some of the key victims’ rights are:
  • To be immediately informed of the final disposition of the case;
  • To be immediately notified when the defendant is released from custody;
  • To be notified of any plea-bargain arrangements;
  • To receive protection from threats or harm in accordance with protection program guidelines;
  • To be promptly informed when the defendant has violated a criminal restraining order, term or condition of release, probation or plea agreement;
  • To be informed of financial assistance available as a result of being the victim of a crime;
  • To separate waiting area’s in court;
  • To have stolen property returned;
  • To be informed of escapes or changes in plans of custody arrangements;
  • To be informed when the offender is seeking early release from custody; and
  • To be informed when the offender has violated parole.

Sentencing: A sentence of imprisonment is stayed if an appeal is taken and the defendant is released pursuant to s 40.85 (release after conviction pending appeal). If not stayed, the defendant may be retained for the period reasonably necessary to permit them to assist in the preparation of any appealxcii. A sentence to pay a fine may also be stayed if an appeal is taken and the court deems the stay proper. During this period, the court may require the defendant to provide security in the form of payment or an order restraining the defendant from dissipating assets. An order for probation may also be stayed when a defendant appeals the order.

Appeals:

• Right to Counsel: In accordance with s 1.11 (b) of Title 8, G.C.A, defendants are entitled to defend in person and with counsel. Every defendant unable to afford counsel has counsel assigned by the court at public expense, and at each stage of proceedings, from initial appearance onward. Trial counsel is to advise the defendant of the right to appeal and of the right to counsel on appeal. If an appeal is filed, a copy of the Notice of Appeal with an attached motion for appointment of appellate counsel, should be filed in the Supreme Court. Such motion shall indicate whether (1) trial counsel is a member of the appellate panel, and (2) whether trial counsel wishes to remain as appellate counsel. Upon the filing of such motion, the Supreme Court shall issue an order appointing appellate counsel for all appellate proceedings from the list of attorneys on the approved appellate panel. There is therefore no requirement that trial counsel be automatically appointed as appellate counsel, should an appeal be taken.Upon appointment, appellate counsel shall represent the defendant, until the matter, including appeals or review by certiorari, is closed; until substitute counsel has filed a notice of appearance; until an order has been entered allowing or requiring the person represented to proceed pro se; until the appointment is terminated by court order; or until the attorney is relieved by the courtxciv.
• Ineffective Assistance of Counsel: The right to effective counsel is guaranteed by the sixth amendment to the U.S. Constitution, applicable in Guam by virtue of 1421b(u) of the Organic Act. Principles are enshrined in case lawxcv. The claim to ineffective assistance of counsel can be reviewed de novo. Although it may be heard on direct appeal, it is more appropriate to be brought as a writ of habeas corpus due to the requirement to have an evidentiary enquiry beyond official record. To determine whether counsel was ineffective, a two part test is employed:
  • A defendant must first establish that counsel’s performance was deficient.
  • Such deficiency must be shown to have prejudiced the defence.
  • Deficient performance must be demonstrated by counsel making errors so serious that they were not functioning as counsel as guaranteed by the Sixth Amendment. For example, failure to advise a client on the maximum sentence that they could receive for an offense is considered deficient performance of counsel.
  • Other Grounds for Appeal: An appeal by the defendant is allowed from a final judgment of conviction, from an order denying a motion for a new trial, from any order made after judgment that affects the substantial rights of the defendant and pursuant to s 40.80 (appeal of an order affecting a conditional release). Section 130.15(e) also allows a defendant to appeal a judgment of conviction upon a plea of guilty or nolo contendere where the defendant has filed a sworn statement showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings under s 65.15(c)(motion to suppress evidence), and the trial court has executed and filed a certificate of probable cause for such an appeal with the District Court. This subsection was added when the right to review the various questions raised by s 65.15 before trial was removed. It was intended to permit a defendant to appeal a plea of guilty or ‘nolo’ that was based on the refusal of the court to grant a prior motion to suppress evidence. Grounds of appeal are not codified in G.C.A, however, potential grounds include legal error, juror misconduct, and judicial bias.

  
  

• Collateral Remedies (Habeas etc…):
  • Writ of Habeas Corpus: A writ of habeas corpus can be used as a post conviction remedy for defendants who want to challenge the legality of the application of the laws used in the proceedings that resulted in their detention. An appeal may be taken to the Guam Supreme Court by the Attorney General from a final order of the Superior Court made upon the return of a writ of habeas corpus discharging a defendant after his conviction in all criminal cases prosecuted in a court of record. If an appeal is taken, the defendant shall not be discharged from custody pending a final decision upon the appeal and he shall be retaken into custody if he has been discharged, provided, however, that the Guam Supreme Court may order his release pursuant to Chapter 40.
  • Writ of Error Coram Nobis: In May v People of Guam the Supreme Court of Guam held that error coram nobis should be considered as a post conviction remedy in criminal casesci. This writ may be issued to correct a previous error of the most fundamental character to achieve justice where no other remedy is availablecii. The court in People v May (Angoco)ciii quoted from Skok v Stateciv to best explain the rationale behind applying this writ, as follows:
    “Along with the vast majority of appellate courts which have considered the matter, we believe that the scope of coram nobis . . . is justified by contemporary conditions and public policy. Very often in a criminal case, because of a relatively light sanction imposed or for some other reason, a defendant is willing to forego an appeal even if errors of a constitutional or fundamental nature may have occurred. Then, when the defendant later learns of a substantial collateral consequence of the conviction, it may be too late to appeal, and, if the defendant is not incarcerated or on parole or probation, he or she will not be able to challenge the conviction by a petition for a writ of habeas corpus . . . . Moreover, serious collateral consequences of criminal convictions have become much more frequent in recent years. . . . In light of these serious collateral consequences, there should be a remedy for a convicted person who is not incarcerated and not on parole or probation, who is suddenly faced with a significant collateral consequence of his or her conviction, and who can legitimately challenge the conviction on constitutional or fundamental grounds. Such person should be able to file a motion for coram nobis relief . . .”
  • Writ of Mandamus: Chapter 31 of Title 7, G.C.A, provides for the issuance of the writs of review, mandamus and prohibition. In People of Guam v Superior Court of Guam (Bruneman) the court issued a writ of mandamus in favour of the People (prosecution) directing the Superior Court to vacate an order in relation to the admission of evidence in a criminal case. In doing so, the Court recognised the general policy to limit those issues from which the People may appeal in criminal matters, however, noted that case law supports the issuance of a writ of mandamus in those situations where “the trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused.”
    The court referred to the following factors as a guide in exercising its discretion to issue a writ of mandamus:
    • Whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the desired relief;
    • Whether the petitioner will be damaged or prejudiced in a way not correctable on appeal;
    • Whether the court’s order is clearly erroneous as a matter of law;
    • Whether the court’s order is an oft-repeated error, or manifests a persistent disregard of rules; and
    • Whether the court’s order raises new and important problems, or issues of law or first impression.
    The court noted, however, that these factors would not relieve the court of their own reasoned and independent analysis of the issues. Rather, these factors are applied as a framework of the starting point in the determination of the propriety of mandamus relief.

Rights in Prison

Conditions of confinement: Contained in Title 24 of the Guam Administrative Rules and Regulations (G.A.R), the procedures applicable to Guam Department of Corrections is held in Chapter 1: Penology and Corrections. Inmate’s constitutional freedoms are protected in article 2, s 1201, and the right to recover damages for violations of civil rights from an officer acting under the color of law is protected in article 2, s 1202. Conditions of confinement are set out mainly in article 3 (Inmate Rules and Discipline).

Immigrant detention: Guam Department of Corrections contains an Adult Correctional Facility and Youth Correctional Facility, which also houses immigration detainees.

Right to medical care in prison: Inmates have the right to medical and dental treatment. Section 90.49(b) of the G.C.A states specifically that fund in the Corrections Revolving Fund may be used to provide medical, dental and pharmaceutical supplies for prisoners and detainees, including off-island prison or medical institutions. The Attorney General of Guam has released a memorandum clarifying that the legislative intent of this section is to pay for medical treatment for inmates. The Attorney General further stated that these funds may also be used for the medical and dental treatment of pre-trial detainees.

Mental health care: The Department of Corrections is to provide reasonable psychiatric and psychological treatment for inmates, and is to maintain adequate facilities and staff for those services, or provide referrals. Every person entering custody is to be examined for physical or mental health problems.

Restriction of rights: Rights set out in s 1302 apply to the extent that they are inconsistent with statutory or case law. Restrictions on rights may be imposed as a disciplinary measure when there has been a repetition of prohibited acts. Sanctions include recommendations against parole, segregation, removal from programs or group activities, loss of privileges or jobs, impounding or confiscating personal property, restricting movements of the inmate to their cell for a maximum period of 48 hrs and reprimanding the inmate.

Women’s rights in prison: Guam has a separate facility for female inmates and detainees. Title 24 of the G.A.R uses gender neutral language, referring to both male and female inmates and detainees.

Resources

- The United Nations and Decolonisation, Official website, accessed 15 September 2013.

- British Broadcasting Corporation, News, accessed 15 September 2013 (http://www.bbc.co.uk/news/world-asia-16517384)

- Secretariat of the Pacific Community- Official Website, accessed 15 September 2013

- Guampedia - The Encyclopedia of Guam, accessed 15 September 2013 (http://www.guampedia.com/)

- Unified Courts of Guam- Official website, accessed 15 September 2013, Organic Act.

- Organic Act, 1950.

- Local Rules of the Superior Court of Guam

- Guam Public Defender Service Corporation- Official website, accessed 15 September 2013 (www.guampdsc.net, accessed 10 September, 2013).

- Regulations of the Legal Services Corporation, Restrictions on Legal Assistance with Respect to Criminal Proceedings.

- Supreme Court of Guam’s Proposed Pro Bono Pilot Program Guidelines, September 26, 2011

- Bureau of Labour Statistic- Official website, access 15 September 2013 (http://www.bls.gov/oes/current/oes_gu.htm#23-0000).

- The Death Penalty in the Pacific Islands, Amnesty International, (http://www.amnesty.org.nz/files/Pacific%20islands%20death%20penalty%20notes.pdf, accessed 13 September 2013)

- Guam Code, https://law.justia.com/codes/guam/#:~:text=The%20laws%20in%20the%20Guam,is%20known%20as%20a%20bill.

- People v Rasauo 2011 Guam

- Calder v Bull, 3 U.S. (3 Dall.) 386, 390 (1798); United States v Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008).

- Responsibility for Medical Costs incurred by Detainees, Legal Memorandum, DOC-07-0267, Attorney General, Jan 27, 2009.

- People v Muritok, 2003 Guam

- Guam Rules of Evidence 2006

- Guam Department of Corrections - Official website, accessed 20 September 2013 (https://doc.guam.gov)

- People v. Inglett 417 F.2d 123 (1969)

- People v. Ueki, 1999 Guam 4, Opinion

- Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir. 1995)

- Bonadonna v. Unknown Defendant, 181 Fed. Appx. 819 (C.A. 11 (Ga.), 2006)

- People of Guam v Superior Court of Guam (Bruneman), 1998 Guam 24, November 20, 1998