Associate Justice Lyle L Richmond and Associate Judge Mamea Sala Jr. have ordered the government and the three defendants charged in connection with the brutal beating death of Sio Faumui to provide the court with written statements they expect to present at trial in order for the High Court to make a determination if Nemaia Poamo, Migo Misa and Sefo -aka Raponi Siaulaiga, should stand trial together or separately.

The three men are facing second degree murder.

The statements must be submitted to the court no later than 4 p.m., on Thursday April 12, 2012.

The court’s move came after Deputy Attorney General Mitzie Jessop Folau, who’s prosecuting the case, filed a joinder motion last month, March 8. The motion seeks to consolidate the murder trial of the three defendants.

The government in its motion points to the three cases arising out of the same act or transaction which constitutes the offense on the day the alleged incident occurred; and, explained that holding one jury trial as opposed to three would also aid in conserving prosecutorial and judicial resources.

On March 15, 2012 a hearing on the joinder motion was held where only Siaulaiga, through his lawyer David Vargas, filed an opposition to the government’s motion to consolidate. During this hearing, Misa and Poamo orally joined Siaulaiga’s opposition.

According to the order by the court, Siaulaiga asserts that the joinder would be unfairly prejudicial to his defense, and because each defendant acted distinctly, the charge against each should be adjudicated separately.

He argues that if joined, all three defendants would likely present mutually antagonistic defenses by claiming that one or both of the other defendants committed the offense.

Siaulauga further argues that his ability to defend himself would be impaired because he would not risk testifying in a joint trial, and he would not be able to cross-examine the other two defendants, who he believes would undoubtedly decline to testify.

He argues that these limitations would be unduly prejudicial and would deprive him of his fundamental right to a fair trial.

The defendant is further concerned that if the jury finds Misa and Poama guilty, it would find him guilty for no reason other than being associated with the guilty parties.

He also believes that the jury, faced with sorting through complex facts to determine guilt, would choose to solve the puzzle by finding all parties guilty.

Furthermore, the court documents say Siaulaiga “is of the impression that the counsel for the other two defendants, in their efforts to zealously defend their clients, would effectively become prosecutors in their own right, by attempting to pin culpability on all other defendants,” except their own clients.

Siaulaiga also alleges a possible Bruton Rule violation, because he anticipates the other defendants will likely offer extrajudicial statements that would implicate him.

The High Court states that they understand the defendant’s concern regarding the possibility of unfair prejudice should the three actions be joined. “However, at this time, we are not altogether sure if unfair prejudice would likely result from joinder of the three actions.”

Hence, the court finds “ it would be injudicious to deny ASG’s joiner motion simply because Siaulaiga raised these issues, which he supports only with supposition and conjecture.”

The court states that it would be “prudent to require the parties to submit for the courts in camera inspection” copies of the written statement or summaries of the oral statements made by any of the defendants that ASG intends to introduce at trial in its case in chief, or may use for impeachment or rebuttal.

(“In camera” is a legal term meaning “in private” or “in chambers” as in the judge’s chambers according to www.lectlaw.com)

Also, each defendant was asked to show that if he were tried separately whether or not one or both co-defendants would be called to testify and would provide testimonial evidence favorable to the defendant on trial, or introduce into evidence statements he made implicating one or both co-defendants.

The court will review all statements ‘in camera’ to determine whether there truly exists a threat of unfair prejudice against the defendants.

The court may also schedule and take testimony they find necessary or appropriate to complete the in camera inspection process.

If the threat of prejudice does exists, says the court, it will then determine whether severance is proper — or if other alternatives exist.