“Privilege” Moves Judicial Bid Forward

The shield of “attorney client privilege” played a critical role in the favorable recommendation for Atty. Adam Christian’s nomination to the Superior Court.

On Friday, by at 5-2 vote, the Legislature’s Committee on Rules and Judiciary moved Christian’s nomination to the full Legislative body for confirmation. Sen. Neville James and Sen. Usie Richards voted against the recommendation.

Those who voted in favor, and those non-committee members who supported the recommendation, dismissed as irrelevant Christian’s role as counsel to Governor’s John P. deJongh Jr., in the not only the events currently under investigation surrounding the “Mafoliegate” scandal, but the extent of his involvement in other disputed issues,  including the Constitution, the Diageo and Cruzan rum deals and the property tax dilemma.

Instead, there were testimonials to Christian’s family history and reliance on a limited courtroom litigation history as sufficient justification to move the recommendation forward.

Let us be clear. This is not about Adam Christian, his character, his academic credentials, his family background or his status in the Virgin Islands community. This is not about the concept of “privilege” which is a valid legal position in the protection of communications between an attorney and his or her client.

This is about whether the Rules Committee responsibly performed its duty to determine whether this candidate is fit to sit on the bench of the Superior Court. This is about whether the Committee had enough information before it to determine whether the candidate’s positions on specific areas of the law were taken in support of the law or in support of his supervisor, the Governor. And in our view, as we will explain, it did not.

We also heard Sen. Louis Patrick Hill take the opportunity to specifically attack a member of the radio media and attempt to reduce opposition to the timing of this nomination as “political divisiveness.” Unfortunately, those comments don’t surprise us. Hill’s comments represent the pattern of this Administration to attack any opposing view and attempt to control the media to serve its ends. But the senator, and others who share his view, should be mindful it is the responsibility of the community to scrutinize the actions of the officials they have elected, and the media they do not control will continue to provide the opportunity to do so.

During the hearing, Sen. Neville James stated clearly, and we agree, that the timing of the nomination was a central issue and that it made him uncomfortable to have the proceedings now about a nominee who is scheduled be under subpoena to testify relative to the activities at Estate Mafolie.

Both Senators Terrence “Positive” Nelson and Usie Richards expressed concerns that the inability to get clarity on the issues that went unanswered by the shroud of “privilege” made it inappropriate to support the nomination this time. Nelson cautioned Christian against compromising his own integrity in the interest of protecting his superiors.

In reference to several responses citing “privilege” Christian gave during the hearing, Nelson said, “There seems to be more of an interest and a loyalty to your current boss than to the very letter of the law that you say you would want to uphold.”

From the moment the concept of “privilege” was introduced, the substantive information needed to evaluate this nominee was taken off the table. And despite the best efforts of some in attendance, basic inquiries on the nominee’s approach to the law in general, not to the issues under investigation in particular, were not answered directly.

For example, Sen. Nellie O’Reilly asked the nominee whether he believed that the cases cited in the Elliot Davis opinion concerning the use of public funds for the Mafolie private home renovation were germane to the question at hand. He declined to answer. Why? Sen. O’Reilly did not ask him whether he advised the governor to act on or reject the opinion. She asked whether in his opinion the cases cited were germane. What confidence would he violate by answering that question?

Testifier Mary Moorehead asked how the Committee could responsibly vote to move the nominee forward without knowing to what extent he was involved in the government’s actions regarding the property tax controversy, the issues surrounding Mafoliegate, the negotiation of the Diageo contract and the decision not to forward the Constitutional document to President Obama.

She said the Committee had a responsibility to the taxpayers to provide the “checks and balances” necessary and to get answers to these questions before determining whether the nominee was fit to be a judge.

Former Senator Adelbert “Bert” Bryan said it was “unconscionable and abominable that we have a nominee before us with this big cloud of investigation, corruption and fraud being the chief counsel to the governor of the Virgin Islands.” Bryan also pointed out that when asked about his litigation experience, the nominee replied that he had adjudicated “10 or 20 cases” that, over the life of his legal career, represented fewer than two appearances a year. He questioned whether this record indicated that the nominee had the preparedness, knowledge and experience necessary to sit on the bench.

And in response to the repeated references to Christian’s family and local heritage, Bryan said, “This is not a piece of real estate you know,” Bryan said. “This is not about his father, his sister, his grandmother and all them, this is about him.”

Yet, despite the gaping hole left in the information relevant to this decision, the favorable recommendation went forward.

Sen. Carlton “Ital” Dowe attempted to compare another nominee’s declining to answer a question about the Constitution to Christian’s declining to answer the same question to rebut concerns about moving forward in this matter. The situations are completely different – the prior nominee had no direct link with the question of moving the Constitution forward. Sen. Wayne James, absent from another recent hearing to attend a conference in Cuba, found time to attend and based his support on the nominee’s family history, pledging his support in the full Senate before a vote had even been taken at the Committee level.

It may be that Adam Christian will make a stellar judge and that none of his actions in his role as counsel to the Governor would indicate otherwise. It may be that his advice to the Governor followed the law, and that the Governor chose to ignore it. But the fact is that he did not, for whatever reason, provide the answers necessary to make that determination so we just don’t know, and neither do the members of the Rules Committee. For that reason alone, the nomination should not have been sent forward.

What we do know is that a majority of the members of the Rules Committee, and a significant number of the rest of the Senators, believe that family history and blind obedience in the face of some serious unknowns are sufficient to make decisions that will affect the determination of law in the Superior Court of the Virgin Islands.

We applaud those who, through their vote or their contribution, supported the rights of the electorate to full disclosure before decisions of this gravity are made.

As to the rest, 2010 is just around the corner.

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