synchronicity, jails, pemberton’s custody

south africa:  in the sentence hearing of oscar pistorius for culpable homicide in the death of reeva steenkamp, the plea of the defense is that pistorius not be made to spend time in jail, a social worker pointing to overcrowding, drugs, gangs, sodomy and the lack of facilities for disabled prisoners.  says prosecutor nel, a private cell then…

philippines: in the controversy over the custody of US marine scott pemberton in the killing of transgender jennifer laude, it’s okay with VFA  and EDCA supporters that pemberton remain in US custody, given the dismal state of our jails: he could get raped, killed, mauled.

but wait, we, too, have all kinds of jails.  while “innocent until proven guilty” surely we can find him accommodations in the PNP custodial center in camp crame where estrada and revilla are detained, or some similarly safe facility?  call it special treatment, whatever, but it’s far far fairer and more correct having him  in philippine custody where our own police and our own media can keep tabs on him rather than having him mostly hidden in the american embassy a la daniel smith, or on some warship, and shielded from the public eye.


  1. manuel buencamino

    Definitely. But that’s part of the VFA. As I understood it, the custody was a compromise that both sides agreed to in order to avoid an impassé because both governments felt that the VFA was vital to each’s national security.

    Under the compromise, the Philippines got the sovereignty issue straightened out – accused would be tried by our courts and, if found guilty, imprisoned in our jails – and the Americans got custody during the pendency of the trial, while the accused still enjoyed a presumption of innocence.

    On a practical level, why bear the burden of ensuring the welfare of Pemberton during his trial? Even if we were to detain him in a five-star hotel for the duration of his trial, if he let’s say died from dengue, we would still have a hard time living it down. Let the Gringos worry about caring for him for now. Anyway if and when he is found guilty we can lock him up and throw away the key because knowing the character of Gringos, they will wash their hands off him if and when he is found guilty. Everybody happy except those who see a sovereignty issue behind every white face.

        • Going by MB’s logic on presumption of innocence being extinguished after RTC conviction EVEN on appeal (See comments section of FV link)…

          Then the presumption of constitutionality of DAP is already extinguished after the unanimous Supreme Court vote of its unconstitutionality regardless of the M.R. filed by PNoy government.

          • manuel buencamino

            Presumption of innocence is over once there is a guilty verdict because the burden has shifted to the convict. He must now convince a higher court that the lower court erred on the grounds of procedure or because new evidence that would prove innocence is discovered. Appeals courts don’t try cases all over again. You have to show them something new if you want the appeal to go forward.

            The presumption of constitutionality on DAP existed before the SC decision. The presumption was no longer a presumption after the SC rendered its decision. An MOR asks the court to reconsider its decision, it is not asking the court to readopt the admin’s presumption.

          • Baka hindi mo lang nabasa ang mga jurisprudence sa FV link na ibinigay ko.

            Ito ang nabuo kong puzzle noon:

            Presumption of innocence – continued
            Conviction – NOT YET FINAL AND EXECUTORY
            Sentence – stayed (during pendency of appeal)
            Appellant – confined (or out on bail)
            Outcome of trial – being reviewed

          • manuel buencamino

            Eto ba yun comments mo?

            “Bail is denied in offenses punishable by capital punishment. Why?

            In the En Banc Resolution of 15 October 1991 in People v. Ricardo Cortez,[8] the Court ruled that an accused, who is charged with a capital offense or an offense punishable by reclusion perpetua, is no longer entitled to bail as a matter of right even if he appeals the case, to this Court since his conviction clearly imports that the evidence of his guilt is strong.

            The clear implication, therefore, is that if an accused who is charged with a crime punishable by reclusion perpetua is convicted and sentenced to suffer such penalty, bail is neither a matter of right on the part of the accused nor of discretion on the part of the court. The court would not have only determined that the evidence of guilt is strong, it would have likewise ruled that the accused’s guilt has been proven beyond reasonable doubt. Therefore, bail must not be granted during the pendency of the appeal from the judgment of conviction.
            – G.R. No. 157147, September 10, 2003, PEOPLE vs. CAWALING

            Therefore, the convicted-appellant no longer enjoys the presumption of innocence because the evidence of his guilt is strong. This is also the reason why their length of confinement or imprisonment is deducted from the total sentence; in part, they are already serving their time pending the resolution of their appeal, in another, they are already presumed guilty…pending appeal, of course.

            August 9, 2007 at 10:38 pm (UTC 8)
            To those who have lighter sentences, their conviction STAYS unless and until the SC reverses the conviction. They are no longer presumed innocent while the execution of their sentence is just STAYED because they were granted bail.

            August 9, 2007 at 10:58 pm (UTC 8)
            i also should have pasted this:

            Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution.”

            Hindi bail ang pinaguusapan natin. Balikan mo yung sinabi mo bago mo inumpisahan ang enumeration mo. You equated presumption of innocence with presumption of regularity. I replied na magkaiba yun. And then came the enumeration. So tinanong ko how do we get out of this bind? Ang sagot mo ay links sa comments to MLQ’s thread on the issue of bail. Hinahanap ko yun pinakamahustisyang approach diyan sa question of presumption of innocence after a guilty verdict by the CFI. Yun lang.

          • Nalilito ako sa pinaglalagyan ng “Reply” portion.

            Anyway, para matapos ko na lang ang aking kalituhan…

            MB, pareho tayo ng posisyon ukol sa POI noon. Kaya lang, gaya ng paliwanag ni Jaxius sa mlq3 site (2007) at sa nasaliksik ko noon at inilagay sa FV site (2009), nagbago ang aking pananaw at ang buod nito ay ang puzzles na binuo ko at ibinigay dito sa stuartsantiago site. Taliwas na ito sa pananaw mo ukol sa POI. Yun lang ang punto ko sa kauna-unahan kong komento rito.

            Alinmang teorya o suhestiyon o solusyon ang nais mong ibigay ay saliwa o salungat na sa kasalukuyan kong pagkakaintindi sa POI. Ang paliwanag ni Jaxius noon sa mlq3 site na “common law” ang aking ipinaiiral noong 2007 na hindi naman nararapat sa Batas ng Pilipinas ang isang dahilan ng hindi pagkakaunawaan.

            Pasensiya sa abala.

            Hahayaan ko na lang ang palitan ng kuro, katotohanan, at ‘jurisprudence’ na natalakay noong 2007 at 2009 na manatili sa aking isipan bagama’t ‘dump’ na pala sa iyo ang mga iyon. Mahalaga ‘yon sa akin dahil naliwanagan ako sa POI at sa tunay na pagpapairal nito at hindi kathang-isip.

            Salamat, Angela.

          • Sa madaling salita…para malinaw…

            Mali ako noong 2007 (mlq3 site). Tinama ko ang sarili ko noong 2009 (FV site).

            Nagbaliktanaw naman ako ngayong 2014 (dito sa blog post na ito).

            Tama, ‘all along,’ si Jaxius sa kaniyang mga paliwanag sa akin noong 2007.

          • manuel buencamino

            Hindi ko nga binalikan kasi naalala ko yung argumento ni DJB. Sabi niya meron presumtion of innocence ang isang tao hanggang i-affirm ang guilt niya ng court of last resort o kaya tanggapin niya ang verdict at hindi siya mag appeal. So kung susundin natin ang logic na ganun, e di lahat ng taong na hatulan ng guilty pero hindi naman na-confirm ng court of last resort o kaya hindi na nanakpag appeal kasi baka naman naubusan na ng pera pambayad ng abogado o namatay bago natapos ang appeal ay presumed innocent pa din. So pakawalan na lang natin on bail lahat ng hindi pa tumatannggap sa kanilang guilty verdict, lalo na yung mga walang pera pambayad ng appeal.

          • manuel buencamino

            And to extend your presumption of innocence argument even further, I would propose, in the interest of justice, that all cases be subject to review by the court of last resort ng sa ganun kahit na yun walang pera pambayad ng abogado ay may as many chances as those with money to pay for lawyers.

          • Pag walang appeal:

            Presumption of innocence – extinguished
            Conviction – FINAL AND EXECUTORY
            Sentence – to be meted out
            Appellant – N/A
            Outcome of trial – unless the sentence is capital punishment, since there is no appeal, the outcome will no longer be reviewed

            Wasn’t it obvious?

            N/A, not applicable

          • manuel buencamino

            I am not rearguing your point. I was extending your puzzle to some sort of practical application kasi:

            1. Ang pupuntahan ng logic ko na nawawala ang presumption of innocence because of conviction in a lower court ay the convict will be held in detention while his original conviction is under appeal.

            2. And sinasabi mo naman at ni DJB ay hindi nawawala ang presumption of innocence hanggang hindi meron final and executory decision ang court of last appeal.

            Kaya I extended your argument: Since the presumption of innocence is extinguished only after all appeals are denied then, in the interest of justice, all cases should be automatically reviewed by the court of last appeal.

            And since all respondents are presumed innocent, even if the probability of guilt is high, then all respondents should be allowed bail pending the final resolution of their case.

            So I was hoping na iyan ang tatalakayin natin. Kasi obvious nga ang ennumerated points mo, dinaanan na namin iyan ni DJB years ago, so bakit pa natin tatalakayin ang isang bagay na pareho natin nakikita?

            Kaya ang gusto kong malaman ay kung nakikita mo ang point ko at kung ano ang masasabi mo tungkol dun.

            Hindi kami nakamove on ni DJB kasi nagmatigas kami sa aming mga pwesto. Ngayon baka naman dahil binalikan mo ang issue na iyon meron na tayong mapupuntahan. So either interesado kang bukitkitin natin from a new angle ang issue o hindi. Ngayon kung ang punto mo lang ay ipakita na marunong ka mag ennumerate, e okay lang. Hanggang dun na lang tayp.

  2. “all it special treatment, whatever, but it’s far far fairer and more correct having him in philippine custody where our own police and our own media can keep tabs on him …”

    angela, question: why is it fairer? why do we want media to keep tabs on him. what does “keep tabs” mean here? like kay revilla, kung naiinitan sya? ano ang lunch nya, like kay napoles? why does that info matter?

  3. harry roque: “…the Daniel Smith precedent was different. There, Smith was immediately made available to Philippine authorities for purposes of attendance in all proceedings as soon as he was identified. But for some reason, this has not happened to Pemberton. His identity was ascertained as of last Monday at the latest, and yet until today, Thursday, US authorities have not made him available for investigation purposes.”

  4. manuel buencamino

    Salamat sa iyong pagpaliwanag Baycas. Ang sa akin naman ay pag na convict na sa lower court wala na yung presumtpion of innocence kasi sa appeal ang tinututukan na ay yun desisyon ng judge at yun appreciation niya ng evidence.

    Angela, dumpster diving kasi ang tawag ko nung araw pa pag ako ay nagreresearch.