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CA affirms conviction of Pemberton for killing Jennifer Laude


The Court of Appeals (CA) has junked the plea of US Lance Corporal Joseph Scott Pemberton to reverse his homicide conviction for the death of transgender Filipino Jeffrey "Jennifer" Laude in October 2014.

In a decision dated April 3, the CA Special 16th Division tossed out Pemberton's petition for lack of merit.

The appellate court also ordered Pemberton to pay the heirs of Laude P4.32 million for loss of earning capacity, P30,000 for exemplary damage, civil and moral damages to P75,000 each, and P155,250 for actual damages for autopsy, wake and burial.

The CA added that Pemberton shall pay 6 percent interest per year on all civil liability from the finality of the decision until fully paid.

Pemberton was sentenced to six to 10 years imprisonment by by the Olongapo City Regional Trial Court, Branch 74, in December 2015, following a closely watched trial that lasted for a year.

Laude was found dead, with her head inside a toilet bowl, in the bathroom of a Celzone Lodge room in Olongapo City on October 11, 2014.

The victim, then 26 years old, was last seen with Pemberton entering the room with another person after having drinks at a nearby bar where they met. The other person, Laude's friend Mark Clarence "Barbie" Gelviro, later left the two alone.

In its decision, the trial court said Pemberton himself admitted to one of his buddies that he could have killed a "he-she."

He was also the last person seen with Laude before the transgender woman was found dead.

Laude's camp welcomed the ruling.

"The Court of Appeals’ affirmation of the guilty verdict of Pemberton is a welcome development. The fact that a member of the US Marines was found guilty for breach of our criminal laws for the very first time is an affirmation of Philippine sovereignty," said Kabayan Rep. Harry Roque, who represented the Laudes in the case.

Roque, however, expressed alarm at the possibility that Pemberton could be given the chance to be released from detention.

"Nonetheless, the Laude family is alarmed that unless the President intervenes, Pemberton could be set free as early as July this year with allowance for good conduct and his alleged enrollment in a distance learning program. An incarceration of only three years for the death of a Filipino trivializes the death of our sovereignty," he said.

In his appeal, Pemberton said he was only defending his dignity and self-respect after Laude allegedly molested him.

But the CA said the moment Pemberton pushed Laude away, “there was no longer unlawful aggression to justify the killing."

"[T]he alleged molestation done to Pemberton cannot be considered as unlawful aggression. Unlawful aggression is defined as an actual physical assault, or at least a threat to inflict real imminent injury, upon a person. Here, Pemberton did not suffer any injury when he allowed Laude to perform oral sex on him," the decision stated.

The CA also said there was no physical evidence to show that Laude slapped him after the soldier found out she was not biologically female, "causing him extreme pain and disorientation."

"The only reason why he attacked Laude was that he was furious at him for pretending to be a woman, nothing more, nothing less," it said.

"We thus find Pemberton’s defense of an impending grave danger more imaginary than real...In the absence of unlawful aggression, even the privileged mitigating circumstance of incomplete self-defense which Pemberton also invokes cannot be appreciated in his favor. With the above disquistion, the conviction of Pemberton for homicide is undeniable,” the decision stated.

The appellate court also backed the findings of Dr. Reynaldo Dave that Laude died due to asphyxia by drowning, contrary to the belief of forensic pathologist Racquel Fortun who supported Pemberton's view that Laude was unconscious but still alive when he left her.

"Dr. Dave, the medical-legal officer, was the one who personally conducted the autopsy of the cadaver of Laude...Meanwhile, Dr. Fortun was not able to examine the body of Laude. Her conclusion was arrived only after perusing documents and pictures provided to her. Presented by these considerations, we find that the trial court did not err in assigning more value to the findings of Dr. Dave as opposed to that of Dr. Fortun," the CA said.

"[P]emberton unabashedly plunged Laude’s head in the toilet for the puerile reason that Laude pretended to be a woman. To our mind, placing Laude’s head inside a toilet shows that Pemberton never thought of Laude as a human being, but as fecal matter due to his sexual orientation,” it added.

The American serviceman is currently detained in a restricted facility at the Armed Forces of the Philippines headquarters in Camp Aguinaldo, Quezon City. — VDS/KBK, GMA News

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