today’s manila times exclusive is the biggest bummer yet. and then, again, maybe not.
Draft ruling acquits Smith
CA justice wrote ponencia before retiring in 2009
By Jomar Canlas, Reporter
The Court of Appeals could have overturned the conviction of American soldier Daniel Smith long before his rape victim “Nicole” came out with an affidavit recanting her previous story, virtually clearing Smith of her charge of sexual abuse.
The Manila Times obtained the 55-page draft ruling written by appellate court Justice Agustin Dizon who handled the Subic rape case. In it, he wrote that Smith was innocent “beyond reasonable doubt.”
Dizon, who retired on June 27, 2008, said Smith should have been acquitted based on the technical and substantive aspects of the case.
The document has been attached to the records of the case on Dizon’s request. The case has been raffled off and is now pending before Court of Appeals Justice Monina Arevalo-Zenarosa.
The Dizon paper was not released, though, as the Court of Appeals’ division members did not sign it because of time constraints.
A source who is familiar with the development-but had asked anonymity-told The Times that Court of Appeals Justice Celia Librea-Leagogo, the senior member of the 17th Division, did not sign the Dizon draft ruling or ponencia as she needed at least two months to review the case. Dizon was the division’s junior justice at that time.
The document reached the chambers of Leagogo in May last year, a month before Dizon retired.
The source described Leagogo as “meticulous” about the Dizon ponencia and fearful of going against public opinion and putting the Court of Appeals in a bad light.
But even before Dizon retired, Leagogo had inhibited herself from handling the case, as she happened to be a friend of one of Smith’s lawyers. Leagogo was replaced by Justice Apolinario Bruselas.
The chairman of the appellate court’s 17th Division at that time was Justice Regalado Maambong, who neither expressed concurrence or dissent on the ruling. Maambong took a leave of absence and left for Israel. He was replaced by Justice Vicente Veloso, who also recused himself from deciding on the Dizon paper as he, too, was a friend of one of Smith’s lawyers.
Causes of delay
These developments delayed the signing of the draft decision and forced the 17th Divison to look for other members. Meanwhile,time had run out for Dizon, as he was reaching retirement age.
The case was raffled anew, with Associate Justice Juan Enriquez coming in as the new member of the court’s Special Division. Enriquez, however, took the tack the others had taken for the same reason that one of Smith’s counsels was his friend. He was replaced by Justice Hakim Abdulwahid.
With the subsequent raffle of the case, the new ponente replacing Dizon was Zenarosa, with Justices Mariano del Castillo and Apolinario Bruselas as members.
The US Marine’s appeal has been pending before the Court of Appeals for more than two years now, stalled by the inhibition and retirement of justices assigned to handle the case.
Smith was convicted of rape and sentenced to serve 40 years in the Philippines on December 4, 2006.
In the Dizon ponencia, the justice pointed out that Smith could not be found guilty beyond reasonable doubt for rape as the information on the charge sheet filed by the lawyers of Nicole showing “force and intimidation” appeared questionable.
Force and intimidation are elements in the commission of the crime of rape under Article 335 of the Revised Penal Code.
“Rape is committed by having carnal knowledge of a woman under of the following circumstances:  by using force and intimidation;  when the woman is deprived of reason or otherwise unconscious.”
The prosecution filed the information on the basis of force and intimidation, but Justice Dizon noticed that the evidence presented was “intoxication,” which is interpreted as “deprived of reason or otherwise unconscious.”
Dizon reasoned that “intoxication” as defined under Article 15 of the Revised Penal Code is an “alternative circumstance,” which means that it could either be aggravating or mitigating to the crime.
But the justice wrote that “intoxication” could not be equated with “unconsciousness” or vice-versa.
This line of reason gave rise to doubt whether or not Nicole was “unconscious” or “intoxicated.” It will be recalled that Nicole admitted getting drunk with Smith.
As a rule under the Article III, Section 14, paragraph 2 of the 1987 Constitution on the Bill of Rights, the accused has to be informed of the charges filed against him.
One cannot be charged with one offense on this particular element- force and intimidation-of the crime while presenting another element, intoxication.
“In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf,” the law says.
Doubt was inculcated in the mind of Dizon as to the factual circumstances of the crime of rape between Nicole and Smith.
Dizon was not convinced that Nicole was raped at all.
He said that the use of force applied to Nicole was not apparent because she herself went to the vehicle voluntarily.
Smith alone allegedly committed the rape, without the participation of the other US soldiers inside the van.
The justice wrote that either way, the issues of “force and intimidation” and “unconsciousness” via “intoxication” could not be appreciated because such amount of evidence could convince him to convict Smith.
Dizon wrote that Nicole was not deprived of reason after all, since she was aware of the details surrounding the crime because at that exact moment she was drunk but not totally unconscious.
Hence, he decided to draft a ponencia, on the front page of which ruled that Smith should be acquitted and that justice must be served to all regardless of sex, race or creed.
The Times source said that Zenarosa vowed to issue her ruling before her retirement in August.
Several appellate court justices who talked to The Manila Times on condition of anonymity said that most of them support the acquittal of Smith on the basis of the Dizon’s draft.
The justices said they have seen several lapses in the conviction made by Makati Regional Trial Court Judge Benjamin Pozon.
Their statements on the Dizon paper were confided to The Times by the Court of Appeals justices even before the March 12, 2009 affidavit of desistance manifested by Nicole to the appellate court.