Subic rape case trial winds down: Who failed whom?

BY RORIE R. FAJARDO, GMANews.Tv The Subic rape case trial has come to a virtual end, after four months of hearings that ended last September 25. Yet more than a legal tussle between prosecution and defense lawyers, the case has curiously transformed into internal strife between the prosecutors on one hand, and client Nicole and her family members on the other. The hearings, which began in June technically closed two weeks ago after the prosecution informed the court October 5, supposedly the official last day of the hearing, that it will no longer conduct a rebuttal of its witnesses from the US Naval Criminal Investigative Service (NCIS). Presiding Judge Benjamin Pozon is expected to promulgate verdict on the case on November 27. To say the least, the nasty verbal exchange between Nicole and prosecution lawyers was totally unexpected. Nicole, her mother, and her private counsel Evalyn Ursua, had similarly charged the lawyers appointed by the Department of Justice with alleged incompetence. One of the lawyers later fired back with a catty remark, and called Nicole and her mother "ingrates." Who failed whom? The question is: Did the prosecutors fail Nicole? Or, did Nicole fail the prosecution? A 16-year-old document of the United Nations Congress on the Prevention of Crime and the Treatment of Offenders essentially defines the duty of public prosecutors, in one of its provisions. "Prosecutors, as essential agents of the administration, shall at all times maintain the honor and dignity of their profession," it stated. Criminal and civil lawyer Alni Foja believes that Nicole has basis to express dissatisfaction with the prosecutors’ performance. "The underlying issue here is trust more than the competence," says Foja, member of the Counsels for the Defense and Protection of Liberties (CODAL), a national organization of lawyers focusing on human rights and alternative legal services. Defending a case is unimaginable if both complainants and prosecutors have a seeming mutual mistrust for each other, Foja says. Some quarters, including Justice Secretary Raul Gonzalez himself, have averred that Nicole and her mother may have grown too emotional they tend to overlook the legal and technical processes involved in a trial. Gonzalez, who picked the prosecutors for the case, had from the start of the case, expressed disbelief toward the rape claim of Nicole, an accounting graduate at the Ateneo de Davao in Davao City in Southern Philippines . Women’s groups were so riled by the controversial justice secretary who had hinted before the trial opened on June 2 that rape charges against the three other accused US marines would be dropped. Lance Corporal Daniel Smith is the chief respondent in the case. His three co-accused are Staff Sergeant Chad Brian Carpentier, and Lance Corporals Keith Silkwood and Dominic Duplantis. Nonetheless, on Gonzalez’s bidding, the prosecution panel was composed of senior state prosecutor Emilie delos Santos and state prosecutors Lagrimas Agaran, Elizabeth Bardal, Nolibien Quiambao and Hazel Decena-Valdez. Not bent on winning? Former Senator Leticia Ramos Shahani thinks that the prosecution might have been remiss in part. According to her, what happened could have been a matter of logic in winning, which the prosecution allegedly chose to ignore. "If you want to score a point in basketball, would you pass the ball to the player farthest from the goal?" asks Shahani, referring to the prosecution’s decision to assign Quiambao instead of Delos Santos or Valdez to cross-examine Smith. Shahani says she has been following the case as a citizen and as principal author of Republic Act 8353 or the landmark Anti-Rape Law. Passed in 1997, the law amended the definition of rape from being a crime against chastity to a crime against persons. In Shahani’s view, the prosecution’s decision not to let Delos Santos herself, a veteran prosecutor, or private counsel Ursua to cross-examine Lance Corporal Smith, showed that "the government is not decided to win." Interviewed by GMANews.Tv at her home, Shahani expressed disappointment over the government’s "lukewarm attitude" toward the case. What went wrong? Weeks before the close of the hearings at Branch 139 of the Makati Regional Trial Court under Judge Pozon, long-brewing if unexpressed rancor toward the prosecutors erupted from the camp of Nicole. The ill-will was directed against the prosecution panel led by senior state prosecutor Delos Santos . Nicole had earlier complained about the allegedly weak cross-examination state prosecutor Quiambao had done on Lance Corporal Daniel Smith, the principal accused, who took the witness stand on September 11. Nicole’s dissatisfaction was followed by disclosure by her mother, Susan Nicolas, that lead prosecutor Delos Santos had earlier told her she should agree on a "settlement." Delos Santos had supposedly said that the case of former Agriculture undersecretary Jocelyn "Joc-Joc" Bolante, who is being detained in Chicago on immigration law violations, may be used by the US as leverage to secure the accused marines’ freedom. After scandalous verbal exchange, Nicole demanded that Secretary Gonzalez replace the prosecutors, except for Valdez , because of their alleged incompetence. State prosecutor Delos Santos, prosecution team leader, on national television called Nicole and mother Susan ingrata (ungrateful). This, after mother and daughter walked out of the court room on September 14 to protest the prosecutors’ alleged incompetence. Gonzalez did not yield to Nicole’s request, however. He said the team would stay but that private counsel Ursua would also be granted more "active participation" in the prosecution. Gonzalez’s decision came on September 25, when the defense witnesses had already concluded their testimonies. Relations between Nicole and the prosecutors took a turn for the worse her mother Susan Nicolas divulged that Delos Santos had talked with her on three separate occasions, supposedly to convince her to settle with the accused. On October 4, Nicolas filed her affidavit on the alleged settlement offers with the justice department and gave Judge Pozon a copy. Nicole’s eldest brother, Ricsan, filed his own affidavit to corroborate his mother’s claim. Last week, Nicole expressed fears that she would lose the case because of the sloppy work of the prosecutors. A matter of trust The United Nations document, called the Guidelines on the Roles of Prosecutors, was adopted by the UN body’s eighth congress held in Havana , Cuba , in September 1990. Specifically emphasized in the 24-point guideline is the role of the prosecutor in criminal proceedings, such as the Subic rape case trial. It stressed that prosecutors should, among other things, "consider the views and concerns of the victims when their personal interests are affected" and "protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim." Nicole may have limited knowledge of the type of questions needed to be asked during cross-examination, but CODAL lawyer Foja believes that the complainant has the capacity to discern what should be asked of the principal accused. Nicole may have already anticipated the questions to be highlighted during the cross-examination during her preparations with her private counsel, Foja tells GMANews.Tv. "They (prosecutors) seem to be defending other interests, as shown in the cross-examination of the defense. They should have used their best talents," former senator Shahani says. Landmark case The case is considered historic as it is the first filed against erring US soldiers in the Philippines that moved on to trial in court. More than 100 cases of sexual offenses committed by US servicemen against Filipino women and children before the US bases shut down in 1991 never prospered in courts, women’s groups say. Shahani warns that failure in this landmark case could send the wrong signal that erring US servicemen may go scot-free, despite the enforcement of the Visiting Forces Agreement (VFA) provisions. The VFA replaced the Military Bases Agreement (MBA), which the Senate in 1991 refused to renew for another 50 years. One of the reasons cited for non-renewal was the increasing number of cases of American soldiers who have not been punished for human rights violations against communities near the bases, especially sexual abuse against women and children. Ratified in 1999, the VFA allowed American troops to hold joint military exercises with Filipino troops in the Philippines for temporary periods only. The VFA provides that a Philippine court will have jurisdiction on a crime committed on local soil. The proceedings should be concluded within one year since it began, otherwise the accused Americans would have to be allowed to go home unpunished. "Crimes like this would happen again if we don’t fight this well," stresses Shahani. Gonzalez’s decision to let Nicole’s private prosecutor participate in the cross-examination comes way too late, Foja says. The permission was given after the defense had rested its case. The prosecution had decided not to proceed with the rebuttal reportedly without informing Nicole, she said. Foja is amazed that prosecution head Delos Santos has limited the role of private prosecutor Ursua in the litigation. Based on experience, Foja notes that prosecutors usually welcome the participation of private counsels because doing so would lessen their work load. The Task Force Subic Rape (TFSR), a multi-sector coalition formed to support Nicole’s cause, says that Delos Santos’ decision to let go of the opportunity for a rebuttal was consistent with the lead prosecutor’s intent to compromise the case. "There is no room for overconfidence in a case that should be proven beyond reasonable doubt confronting erring nationals of a dominant power that is the United States . All avenues that could help strengthen the case such as the rebuttal should have been taken," says TFSR in a recent statement. TFSR says it believes that the silence of the US Embassy on the alleged settlement offers strengthens the validity of Susan’s allegations in her affidavit. Smith himself did not deny reports on settlement offers when he recently appeared on national television to reiterate his innocence, the task force observes. US-RP relations Beyond the charges of incompetence of the prosecutors, the case has become more complex and controversial with the recent revelations of Nicole’s mother of government attempts to persuade her family to amicably settle with the accused. In her three-page affidavit, Susan said lead prosecutor Delos Santos first floated the settlement issue to her on July 14, 2006 when she asked the lawyer what the prosecution would do with the case. The offer was repeated in separate incidents on July 17 and 28, 2006, according to Susan’s affidavit. Allegedly thrown in as part of the settlement offers were the following perks: permanent residence in the US for Nicole, grant of multiple entry visas for the rest of the Nicolas family, and money they could use to rebuild their lives if they should decide to migrate. Delos Santos allegedly said the case might also be used in the case of former agricultural undersecretary Jocelyn "Joc-joc" Bolante. Bolante, the alleged implementer of the P728-million fertilizer fund scam to help President Gloria Macapagal Arroyo win the 2004 elections is being detained in the US for violation of immigration laws. To Shahani, who was also a former diplomat, amicable settlement offers, such as what Susan Nicolas had alleged, are an imminent thing, especially if bilateral relations are at stake. "This is what happens in relations among nations. Our government could easily deny the mother’s claims, but it is enough that the scandal is affecting our bilateral relations," says Shahani. The Subic rape case trial, Shahani explains, is something that the US could not afford as of the moment. "It claims to be the bastion of democracy, and yet its people are being charged with sexual terrorism." Shahani also believes that making such attractive offers would not be done if there were sanctions from the authorities. "Delos Santos could not just invent those offers because she is neither an American nor an American official," argues Shahani. Long wait for verdict The public now awaits verdict on the case, after 13 weeks of trial and a total of 28 witnesses, including five from the defense side. With over six weeks to the promulgation of the verdict on November 27, both camps seem to be racing against time in their separate, parallel efforts to secure media maximum exposure for their untold stories. Over the last week, the accused marines have granted exclusive interviews with GMA Network, something they had previously denied all media groups since they were arraigned in April. Smith, the principal accused, said in his interview with GMA News on October 4 that he granted the interview to air his side amid the "one-sided press." What scares him, Smith said, is to be found guilty of the charge. In his September 11 testimony, he has maintained that he had consensual sex with Nicole on that fateful night of November 1, 2005 at the Neptune Bar in Olongapo City . "Knowing that I am innocent, this will be the worst thing anybody would be accused of. I just want to get back to my life," the 21-year-old marine said. Nicole, meanwhile, has vowed to fight to the end despite her strained relations with the prosecutors. "I have come to realize that what I have done is right…Fighting for my dignity as well as the dignity of my country and standing up firmly for the case is the most courageous thing that I have ever done," Nicole said in a press statement circulated last September 16. For advocates like the GABRIELA women’s federation, winning the case in court is just one of many hurdles that Filipinos must overcome. "The fight would not just end in the legal arena," says Emmi de Jesus, GABRIELA secretary general. By bringing the case to court, De Jesus says, Nicole has encouraged other women to break the "culture of silence" to fight violence against women. The case has also put to test other crucial issues, not least the future of the RP-US Visiting Forces Agreement, which militants had judged to be anomalous from birth. At day’s end, the question before both supporters and critics is not simply how far women like Nicole could get justice under Philippine courts and laws, says De Jesus. If acquitted, Smith and his co-accused would have regained their freedom and start a new life in their homeland. The law prevents them to be tried for the same criminal charges. Whichever way the verdict goes, moving on after the case will not be as seamless for Nicole. It never was, for all other women before her who had gone to court for rape proceedings. GMANews.Tv