Law requires judges to avoid jailing criminal defendants “whenever possible”

“According to the report, 98 percent of all released defendants were not arrested for a new violent offense, 89 percent remained arrest-free, and 83 percent were not issued a warrant for Failure to Appear (FTA) in court,” according to the court report.

While the court report celebrates the majority of criminal defendants who appear to be complying with their pre-trial release conditions, the attorney general has focused attention on those defendants judges release who constantly are arrested while awaiting trial. Of the five defendants who allegedly committed violent crimes while awaiting trial, the list of offenses include aggravated assault, criminal burning, retail theft, resisting arrest, and drug possession, “arguably creating more crime victims,” according to the Office of the Attorney General report for July.

Criminal defendant Gino Tedtaotao Muareluk is one of those five. After an alleged spree of nine separate violent crimes, each time increasing in level of violence, since 2021, Mr. Muareluk was detained last week following a July 31 arrest for third degree family violence. The victim in this case is new; the previous eight cases all involved a woman who reportedly tried repeatedly to keep the defendant away from her. Each time he was arrested and magistrated in the Superior Court of Guam, however, a judge released him, only for him to pick up a new charge of violence.

The July case is the third one against Mr. Muareluk since December.

Another one of the five who account for the court and AG statistics is Six Paulis, who also has multiple cases involving violence against other people.

Another is Malcolm Chaco, who was arrested recently after leading police on a high speed chase through southern villages. He was ordered to be confined to house arrest earlier this year on charges he locked up and repeatedly beat a woman known to him. That crime allegedly happened while Mr. Chaco was on pre-trial release for a previous case.

“We believe the release conditions are not effectively stopping more crimes from occurring from these persons,” Attorney General Douglas Moylan said. “After eight months prosecuting crimes, the additional harms and lack of respect from those released is not going down and has increased by seven from the prior month. We ask our Senators to pass tougher legislation that prevents the above numbers and better protects us against criminals.”

The law both the AG and the chief justice refer to can be found in Guam Code Annotated’s Title 8, at subsections 40.10 and 40.15.

Guam law currently states:

§ 40.10. Release on Bail Generally Permitted. At his first appearance before a judge of the Superior Court, every person charged with an offense shall be ordered released pending trial in the manner and subject to the conditions provided by §§ 40.15 and 40.20.

The law goes on to provide some leeway for judges:

§ 40.15. Release on Own Recognizance Defined; When Permitted.

(a) As used in this Section, ‘release on own recognizance’ means release of the person charged without bail and upon his written agreement to appear in court at all required times and places and to fully comply with any other court-ordered conditions and restrictions.

(b) The judge shall order the person charged to be released on recognizance, unless the judge determines, in his discretion, on the basis of available information, that such a release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

(c) In determining whether there is a substantial risk of nonappearance by the person charged or that the person charged will endanger the safety of any other person or the community, the judge shall consider the following factors:

(1) the nature of the offense charged, the apparent possibility of conviction and the likely sentence;

(2) the history and characteristics of the person charged, including:

(A) length of his/her residence on Guam;

(B) his/her employment status and history, and financial condition;

(C) his/her family ties and relationships;

(D) his/her reputation, character, and mental and physical condition;

(E) his/her prior criminal record, if any, including any record of prior release on recognizance or on bail;

(F) his/her history relating to drug or alcohol abuse;

(G) the identity of the reasonable members of the community who will vouch for his/her reliability;

(H) whether, at the time of the current offense or arrest, he/she was on probation, on parole, or on other release pending trial, sentencing, appeal or completion of sentence of an offense under federal, state or local law; and

(I) his/her history of compliance with other court orders;

(3) the nature and seriousness of the danger the person would pose to the community or to any individual member thereof if released;

(4) statements of the alleged victim or others as to previous incidences of violence and threats made to the alleged victim;

(5) lethality risk assessments or other risk assessments deemed appropriate by the Judiciary of Guam; and

(6) any other factors which bear on the risk of willful failure to appear or the danger the person would pose to the community or to any individual member thereof if released.

(d) Nothing in this Section shall be misconstrued as modifying or limiting the presumption of innocence.