Pemberton should be charged with homicide, not murder – legal expert

Lawyer and dean of the Ateneo School of Government said on Tuesday that Lance Corporal Joseph Scott Pemberton's crime was an act of homicide, not murder.

 

Lawyer Tony La Viña clarified in an interview with "News to Go" that on the night that Filipino transgender woman Jeffrey "Jennifer" Laude died, Pemberton did not enter the motel room intending to kill.

 

"Hindi ito murder, kundi homicide," he said. "Totoo naman talaga na 'di nagbalak na patayin ni Pemberton si Laude. Nagulat din nga siya mismo sa nangyari."

 

Killing a person falls under homicide when there was no intention to kill, or any evident premeditation.

 

Pemberton's intention had been to have sex with Laude. Upon finding himself deceived, he shoved her, causing Laude to slap him. Angered, Pemberton strangled Laude until she was unconscious.

 

The lack of intention to kill is the basis of Pemberton's defense strategy, La Viña said.

 

"Halimbawa, totoo yung sex part, na nagulat siya na lalaki pala ang kanyang ka-sex. Medyo natural naman yung reaksyon," La Viña explained. "Hindi justified. Under the law, liable ka pa rin, pwede ka pa ring maparusahan. Pero magkakaroon ka ng tinatawag na mitigating circumstance, dahil yung passion mo, yung nagalit ka, justified naman yung galit mo. Pero 'di yun justified to kill."

 

Aside from mitigating circumstances, Pemberton's defense might also argue self-defense, according to the lawyer. This, however, is shaky ground given that Laude had not been attempting to kill him.

 

Overwhelming force

 

According to La Viña, the prosecution team must prove that Pemberton used "overwhelming force" against Laude if it wants to retain the murder charge.

 

"Yung isa sa circumstances na pwedeng maging murder ang isang krimen, ay kung gumamit ka ng overwhelming force, yung napakalaking lakas," the lawyer said. "Kahit wala kang planong pumatay ng tao, pag gumamit ka ng ganun...diba ito trained killer, kasi sundalo. Gumamit siya ng kanyang kamay. Pwedeng i-argue ng prosecution na murder parin siya kasi gumamit ng overwhelming force laban kay Jennifer. So yun yung fallback position ng prosecution."

 

"Kung nagalit man siya, 'di naman niya kailangan patayin ng ganun," he added.

 

However, La Viña maintains his opinion that the crime was homicide.

 

"Sa tingin ko very clear naman na walang intention to kill. Walang excuse dun na pinatay niya ang isang tao... May parusa yun pero wag naman yung lifetime," he said. "Mas ganun ang position ko, na dapat homicide talaga yung karapatdapat dito."

 

Penalty

 

Pemberton is currently detained at a facility within the Armed Forces of the Philippines' headquarters in Camp Aguinaldo, being secured by US soldiers.

 

If convicted, the US serviceman should be surrendered to the Philippine authorities, La Viña said.

 

"Sa Pilipinas siya makukulong definitely, pero alam ko 'pag convicted na...kailangan siya i-surrender sa Philippine authorities kasi regular prisoner na siya 'pag ganun," he explained. "'Pag detention, dun pa siya sa custody ng Amerikano."

 

Murder and homicide have different imprisonment sentences in the country. Murder warrants a lifetime imprisonment or at least a 20-year jail sentence.

 

Homicide warrants 6 to 12 years in prison. The sentence could be reduced to 2 to 3 years if the convict displays good behavior. —Jessica Bartolome/ALG, GMA News