Category: nicole

screwed by manangs

read ricky carandang’s screwed and manuel buencamino’s “manangs” acquit a rapist.   my sentiments exactly.   what a huge setback for the women’s fight against sexist politics.   biglang we’re back to the dark ages when women were seen as sex objects incapable of saying no except when playing hard-to-get for extra favors.   biglang we’re back to the old biases and stereotypes, among them that girls who don’t behave with strict decorum, who dress to look ‘n feel good, who drink alcohol, dance dirty, flirt mightily in public, who just wanna have fun, are asking for rape.   wtf.   where are these women justices coming from?  opus dei?   catholic women’s league?  what books are they reading?   mills & boon?   barbara cartland?

read too rina jimenez-david who calls them “maiden aunts” and patricia evangelista who calls them “virtuous ladies”.   which set me wondering, teka, baka naman mga old maid nga ang “learned ladies” na ito of the court of appeals, and so maybe they don’t know any better about men and sex and rape, and quite possibly they’ve never been drunk in their lives?   so i googled them all, only to find that all three are wives and mothers, and maybe grandmothers, wow, good luck na lang sa karma.

both justice monina arevalo zenarosa and justice myrna dimaranan vidal were born in 1939.   zenarosa took up law in ust and feu, vidal in feu.  both are turning 70 and retiring this year.    hmm, formative years right smack during the japanese occupation and the liberation.   general douglas macarthur must be one of their icons.

justice remedios salazar fernando is a different story.   born in 1953, studied law in ateneo, so far she has been quite popular with post-EDSA administrations and has been having quite a rising career.

She was named Chairman of the Land Transportation Franchising and Regulatory Board in July 1987 where she concurrently held directorship posts at the Light Rail Transit Authority (LRTA)and the Office of Transport Cooperatives. In the latter part of 1991, she held the position of Officer-in-Charge/Assistant Secretary of the Land Transportation Office in a concurrent capacity.

In 1992, she was appointed Commissioner of the COMELEC. On May 21, 1999, she was appointed Associate Justice of the Court of Appeals, being one of the youngest to have been appointed to the position. She received several awards from both private and public sectors, such as Ten Outstanding Young Men given by the Jerry Roxas Foundation, Most Outstanding Capampangan, Woman of Distinction Award by the Soroptimist International, etc. When she retired from the COMELEC, she received an Award for Outstanding Service from the Senate of the Philippines.

i bet she has a moist eye on the supreme court.   i suppose this subic rape case decision is in aid of that?   how sad, specially for a baby boomer whose generation birthed the women’s movement for equal rights.

by the way, if you’re one of those who don’t feel competent to judge for themselves whether what smith did to nicole was rape or not because transcripts of the trial have not been released, so you’re willing to give the three  justices the benefit of the doubt, they must know what they’re talking about, you’re taking their word for it, smith is innocent, well you might want to make tambay sa subicrapecase website’s summary of  court proceedings.   it was rape.

smith walks free

anc breaking news around 5 p.m.: u.s. marine in subic rape case acquitted.

The Court of Appeals (CA) on Thursday acquitted US Marines Lance Corporal Daniel Smith of raping a Filipina in Subic back in 2005, and ordered released immediately.

The ruling was part of the 71-page decision penned by Justice Monina Zenarosa of the CA’s Special 11th Division.

wasn’t it just a couple of days ago when the supreme court was ordering the court of appeals to investigate in 90 days the leak of a draft decision acquitting smith, sabay order smith’s lawyer to explain in 10 days why nicole’s “recantation” was notarized at his lawfirm?

The Supreme Court has ordered the Court of Appeals to investigate the leak of a supposed draft decision reversing US Marine Lance Cpl. Daniel Smith’s conviction for the rape of a Filipino woman in 2005.

In a resolution, the Supreme Court First Division also ordered Smith’s lawyer, Jose Justiniano, to explain why the victim “Nicole’s” supposed recantation was notarized at the Sycip Salazar Hernandez and Gatmaitan law office, to which Justiniano belongs.

so the court of appeals no longer recognizes the authority of the supreme court?    so the court of appeals is now (as ever?) heeding a higher power?   a higher power na masyadong nagmamadali.   i wonder what the chief justice has to say to that.

and i wonder what the trade-off is for gloria.   gloria forever?   ngek.

draft 2008 CA ruling acquits smith

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.

Technical acquittal

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: [1] by using force and intimidation; [2] 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.

Substantive acquittal

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.

Zenarosa ponencia

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.

nicole did not recant

what a shocker naman talaga.   it was bad enough hearing, first, that she had fired her lawyer evalyn ursua AND that she had left for the u.s., of all places.   it got progressively more scandalizing as the news trickled out that she had settled with smith for a hundred thou php and *omgwtf* that she had recanted *gasp*!

a day later i’m clearer about that 100k — it’s in compliance naman pala with the court order that found smith guilty of rape and liable to nicole for civil (50K php) and moral (50K php) damages, so that’s fine.   whether she left or she stayed, she had that money coming to her.   in my book she deserved more, and if she did get more, then good for her.

i’m also clearer about the so-called recantation, which is not a recantation at all — shame on everyone who calls it so.   nicole did not recant.    to recant would have been to deny now her original testimony.   to recant would have been to say now that it was all a lie, she wasn’t drunk, she remembers it all, the sex was consensual.   SHE SAID NOTHING OF THE SORT.

at most nicole ruminates on old questions raised by the defense at the trial.   she acknowledges that under the influence of alcohol she may have behaved inappropriately — which may have led smith to think that she wanted sex.   also she considers the defense line that if smith had intended to rape her he would not have so openly carried her out of the club into the van for all the world to see, so maybe he thought it was consensual?

so she behaved inappropriately under the influence of mixed drinks — but she also says, so did others in the club where there was a lot of kissing and hugging going on,  and, i’m sure, dirty dancing, and no one else got raped.    i think smith was just really horny and on white arrogant macho mode — youdon’tmesswithmeandgetawaywithitshit — never mind that the girl clearly was so drunk she couldn’t walk straight, much less do anything of her own volition.   the affidavit only makes this clearer.

finally she asks, if i was so drunk why did i suddenly become un-drunk when they dumped me on the sidewalk?   aba, kahit sino yata mahihimasmasan, matatauhan, pag biglang nagbago ang takbo ng mga pangyayari, from private to public, from warm to cold, from sounds to silence.   her alcohol-drowned mind was on party mode, even the van was on party mode, with music and cheering and clapping.   when she was dumped, the music stopped, the party was over, she’s suddenly alone, lying on a public sidewalk — the semento must have felt cold to her naked butt, and people were gathering around, someone was calling her a bitch, time to come to her senses, a matter of self-defense, of survival, what a rude awakening.

so, again, that affidavit wasn’t a retraction, rather, an affirmation, by which account, smith is no less guilty of rape.    let’s give nicole credit for managing to please smith’s camp — enough to acquire a u.s. visa perhaps — but without recanting.   that took some smarts.   good for us.

i’m sorry she’s gone but she has her own life to live, her own karma to work out.   if she were my daughter, like susan i would let her go, even insist on it.   obviously she has a karmic connection with america (american soldiers in particular).   until (like any fil-am) she works that out, she cannot be expected to do more for inang lupa than she has already done for the anti-vfa campaign.   mabuhay si nicole.