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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.
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