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.

ninoy’s killers (updated)

“I wanted to keep my silence but I was really bothered by the narrative of the soldiers. It’s just so sad that they can rewrite history.”

can’t begrudge kris and noynoy aquino the deep hurt evoked by all the talk issuing from ninoy’s (and rolando galman’s) convicted killers upon their release, to the effect that they were punished unjustly — they were at the airport not to kill ninoy but to protect him from the assassin rolando galman who was hired by boys of danding cojuangco.

to refresh my memory i googled for, and found pcij‘s file of, the sandiganbayan’s ruling on the ninoy assassination.   a quick read told me that the soldiers were convicted of the crime based on  1) the trajectory of the fatal bullet, “forward, downward and medially”  2) the testimony of eyewitness rebecca quijano aka the crying lady  3) taped recordings of footsteps going down the narrow stairway that stopped at the 11th [of 15 20] and of the gunshot that followed, and  4) voice analysis of words spoken on their way down the stairs, just before the shot: “ako na ako na op ito na ya op pusila pusila.”

Sgt. Claro M.Lat … uttered the first phrase, “Ako na ‘”,
Sgt. Arnulfo de Mesa uttered phrase, “Ako na”;
Sgt. Claro M. Lat uttered the expression “OP”
Lt. Jesus Castro uttered the phrase, “Ito na”;
CIC Mario Lazaga was the one who uttered the word, “Ya”;
Sgt. Claro M. Lat again uttered the expression again, “OP”;
Lt. Jesus Castro next uttered the word, “Pusila”; and,
CIC Mario Lazaqa uttered the second “Pusila.”

The words uttered and the persons uttering them suggest the scenario that, while Sen Aquino and, the Boarding Party were still descending the bridge stairs, the Boarding Party saw that Rolando Galman had prematurely appeared … the members of the Boarding Party consequently panicked because the sudden appearance of Rolando Galman disrupted their planned synchronized actuations. Obviously, the plan was to make Rolando Galman appear suddenly after the Senator shall have reached the van. … The point is that, at the brink of extreme urgency, the command to shoot was made.

all of which give the lie to the soldiers’ story that ninoy was killed (not on the stairs but) on the tarmac by assassin-for-hire rolando galman who allegedly appeared from nowhere and quickly shot the senator in the head before they could stop him.   besides, if what they say were true, what then was that exchange among them on the stairway, “Ako na!” “Ako na!” “Op!” “Ito na!” “Ya!” “Op!” “Pusila!” “Pusila!” all about?   and if their job was to keep ninoy alive, why then did they lay him on the tarmac instead of rushing him into the van to get medical help.   and where, how, did ninoy get that contusion on the top of his head (revealed in the autopsy) that looked like it was caused by the butt of a gun — inside the van perhaps?   one of the soldiers hit him perhaps, for good measure, to make sure he was dead?

suddenly i’m wondering if the freed soldiers are under instructions to “rewrite history,” insist that galman was the killer, who knows, perhaps to discredit danding cojuangco who just happens to be riding very high these days.   according to patricio mangubat, cojuangco is true philippine shaker:

San Miguel Corporation, led by former Marcos crony Eduardo Danding Cojuangco just entrenched themselves deeper into Lopez territory. Cojuangco is poised to take over Meralco, the Lopezes’ crown jewel. Analysts say Cojuangco may do this anytime he wants to.

… Aside from the Lopezes, the Ayalas are now being threatened by the rising influence and presence of San Miguel in other industries. San Miguel just joined the telecommunications industry with the acquisition of Liberty Telecommunications and a joint beneficial partnership with Qatar Telecomms. That move made San Miguel easily the second biggest telecommunications firm, eclipsing even Globe Telecommunications. The move was so good and so swift, it left Gerard Ablaza clueless for months

San Miguel also entered the energy sector industry, with the majority takeover of Petron. San Miguel also brought a majority interest in the power generation sector

So, you see, my friends, San Miguel is the biggest business conglomerate in this country, controlling almost all levers of economic life and enjoying the biggest and the widest economic influence not seen since the 19th century.

thing is, in a one-on-one with korina, kris said that her family will never believe that her uncle danding had anything to do with ninoy’s killing,  anong mapapala niya, hindi naman siya presidente noon.

it would seem that kris has no idea that danding had a lot to lose if ninoy’s dream of rallying the opposition to end the marcos regime had been allowed to prosper.   it would seem that kris has no sense of how powerful danding was and how close he and president marcos were, as in BFF, all the while that her dad was wasting away in jail for continuing to denounce martial law.

At the height of cronyism in the Philippines, Cojuangco controlled $1.5 billion in corporate assets, an amount estimated to equal 25% of the country’s GNP. He headed an agricultural and industrial conglomerate with interests in diverse areas as coconut, sugar, agri-business, banking, and a host of others. The *Wall Street Journal* observed that Cojuangco attempted to create “cartels in rice, sugar, flour, groceries, and soft drinks but ran out of time.” Referring to Cojuangco’s tendency to create monopolies in  the industries where he had investments, a journalist gave him the nickname Pacman, a reference to the computer game where the object is to eat up as much as you can. Cojuangco’s personal net worth was estimated at $500 million, making him among the country’s richest men. [page 217 Some Are Smarter Than Others by Ricardo Manlapat 1991]

at the time of ninoy’s homecoming, president marcos was believed to be on his deathbed after a failed kidney transplant.   imelda was all set to succeed him, with ver’s support, but not if enrile and his reformist officers could stop them, like by mounting a coup, most probably with cojuangco’s support.   ninoy came home precisely to offer the nation an alternative to ver and enrile.

my personal appreciation of danding’s great clout in the time of marcos comes from how he figured in the story of EDSA 1986.   marcos was sick and slow and ver’s orders were not being followed.   the one and only time in those four days when marcos forces scored a hit was on the early morning of day 2 sunday when the radio veritas farm in malolos bulacan was destroyed by pc troopers on orders of cojuangco.

NEW MANILA, QUEZON CITY, 10 p.m. [22 Feb.] – Summoned by General Ver, PC Col. Maximo Mejia arrived at businessman Eduardo Cojuangco’s house in Balete Drive where he also found Virgilio de Guzman, elder brother of Brig. Gen. Isidoro de Guzman, Region III Commander. Mejia was told that President Marcos had decided to neutralize the radio station transmitter in Dakila, Malolos. Cojuangco told Mejia that the attack had been cleared by Marcos to “prevent the incident created by the Enrile-Ramos defection from escalating to a bloody one. [Midday Malaya, “FM General Owns Veritas Attack Role,” 20 May ’86]

most telling of all, danding and his family flew into exile with the dictator on the 26th of february.

Ambassador Eduardo (Danding) Cojuangco and his wife, Soledad (Gretchen) were with their immediate family … They had motored [to Clark] all the way from Sison, Pangasinan, to join the president.   [page 169 Malacanang to Makiki by ARturo C, Aruiza 1991]

if flight means guilt, what was danding feeling so guilty about that he had to fly off when marcos did?   ill-gotten wealth maybe?    the ninoy assassination maybe?   the destruction of radio veritas maybe?

and then, again, maybe none of the above.    but we won’t know unless the aquinos agree to re-open the case and let the chips fall where they may, for a change.   we owe it to ninoy.   otherwise, kris should just stop with the whining on nationwide tv.

addendum:

Rebecca Quijano saw that the senator was shot by the military man who was directly behind the Senator while the Senator and he were descending the stairs. Rebecca Quijano’s testimony  in this regard is echoed by Jessie Barcelona, Ramon Balang, Olivia Antimano, and Mario Laher, whose testimonies this Court finds likewise as credible.

ateneo after-amiel

ateneo is in a real bind.    atenista the 10-year old 4th grader amiel alcantara who was killed in campus.   atenista rin  the kid(s?) of theresa torres na nakadisgrasya kay amiel.

of course obligado ang ateneo na alalayan both the family of the victim and the family of the victimizer.   the family of the precious amiel because, hey, what a terribly painful death and what a painfully grievous loss, which could have been avoided if ateneo’s traffic & sundo system weren’t so messed up.   the hapless single mother and her kids because, okay, it was an accident, malinaw na hindi sinasadyang matapakan nang mariin ang accelerator at hindi agad nakuhang mag-preno.

the ateneo community is clearly on damage-control mode.    official statements ask for prayers and privacy for the affected families pending an investigation.   an atenista blog prays for healing and asks that the community

… take a conscious effort of going beyond the graphic details of his death. While the tragic circumstances force us to focus on this aspect of his death, we also like to form a more optimistic image in the minds of many of our young impressionable students.

but how can healing happen if the community is asked to gloss over the graphic details of amiel’s death on grounds that negative images are not good for impressionable minds?   that’s like shifting to denial mode, escaping from reality, hardly behavior worthy of a highly regarded educational institution.

amiel’s family should not be expected to forgive and forget for the sake of ateneo and the community.   “malalim ang sugat,” said pepe alcantara on anc.   for such a wound to heal, both ms. torres and ateneo must pay.   it doesn’t help that ms. torres is out on php 42,000 bail.

ms. torres has finally apologized, and rightly so, but that does not make her any less blameworthy for amiel’s death and she must suffer the consequences.   kawawa naman ang mga anak niya, yes, but it’s no excuse to let ms. torres off the hook.   that would send the wrong message all around.  ateneo will just have to help the torres family deal with the situation.

the fact is, if ms. torres had behaved like a mother should, attending to her kid/s instead of taking the driver’s seat, the accident would not have happened.   there is also talk that she had a cellphone  in hand just before she accidentally stepped on the gas — if true, then this is a good time as any for a law criminalizing texting or phoning when one is at the wheel, if only within campus for starters.

as for ateneo, parents have long been concerned about the children’s safety but the admin has been deaf to complaints and petitions.   now they gotta pay.   besides settling with the alcantaras, it’s time to give up lots of nice openspaces to parking lots and, maybe, as an atenista mom suggests, make that entire area in front of the grade school a pedestrian area.

no room for evasion or ambiguity here.    amiel’s tragic death must be faced squarely or there will be no healing, and no end to the bad karma.