Subic rape case
Encyclopedia
The Subic rape case, officially known as People of the Philippines vs. Chad Carpentier, Dominic Duplantis, Keith Silkwood, and Daniel Smith, was a criminal case in the Philippines
involving a Filipina
and four US Marines
. It caught wide media
coverage and achieved political
and international
significance because of the Visiting Forces Agreement (VFA) between the United States
and the Philippines
, which had been the subject of protests from the beginning.
Initially, the accuser, Suzette Nicolas, alleged that she was gang-raped. After a few days, she then said that only Lance Corporal Daniel Smith raped her. She also said that just before midnight of November 1, 2005, Smith rape
d her inside a moving Starex
van at Alava Pier in Subic
. Suzette also alleged that Smith's other companions, Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant
Chad Carpentier, were inside the van cheering Smith on as it happened. Smith countered the charges saying that what occurred between him and Suzette was consensual sex.
On December 4, 2006, after numerous court hearings over the course of a year that were open to the public and the media, Judge Benjamin Pozon of the Makati City
Regional Trial Court
Branch 139 found Smith guilty of rape, sentencing him to reclusión perpetua
, while the three others were acquitted. Smith was confined in the US embassy in Manila, despite the judge's order that he be confined in a Philippine jail, and despite protests from Suzette's camp.
On April 23, 2009, the Court of Appeals
headed by three Filipino female Justices, Associate Justices Monina Arevalo-Zenarosa, Remedios Salazar-Fernando and Myrna Dimaranan-Vidal, reversed the decision of the lower court and ordered Smith's immediate release, stating that "... a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence we must acquit."
, was invited to Subic by a friend, US Navy
Petty Officer
Christopher Mills, together with her stepsister, Anna Liza. Mills was a family friend whom they met in Zamboanga, where joint US-Philippine military exercises had been held over the years. Suzette's family operated a canteen which was frequented by soldiers. Suzette, a management accounting graduate, managed the said canteen and in the process befriended military personnel, including Mills and her boyfriend, Brian Goodrich of the 12th Marines Operations Platoon which is based in Okinawa.
Upon the invitation of Mills, and with Goodrich's knowledge, Suzette and Anna Liza flew to Subic. On the night of November 1, 2005, after eating pizza for dinner, Mills invited the ladies to the Neptune Bar for drinks. Mills later left the bar, leaving Suzette and Anna Liza behind in the company of other Marines dancing and having more drinks. Forty-five minutes later, Mills returned and found only Anna Liza who had been looking for the missing Suzette. The two then started a search for her.
Around this time, Suzette had been found at the Alavar Pier. She was found extremely drunk and crying with her jeans worn inside out and a condom sticking out of her underwear. Several witnesses surfaced, from the security guard
of the bar who saw Smith carrying a drunk Suzette to the van to several other people who saw the Marines dumping Suzette at the pier and including the driver of the van rented by the Marines. At first, the driver, Timoteo Soriano Jr., accused the Marines of raping Suzette. Later, he retracted his statement saying he was forced by police to sign the affidavit accusing the Marines. When the Marines were questioned, they denied the charges. Smith claimed that he and Suzette had had consensual sex.
Two other accused Marines were released from custody after they were able to prove they were buying pizza at the time of the incident and were not in the van.
started working on the case, it became clear that the rape case and the custody issue of the Marines had political significance. During the course of trial, in accordance with the terms of the VFA, the accused were in the custody of the US Embassy. Throughout the trial, the issue of U.S. vs. Philippine custody on the accused U.S. Marines was the focus of street demonstrations
and protests by political groups
and women's rights advocates, and it was a hot news item in the Philippine press.
However, some Filipinos and expatriates believe that Suzette was just an extortionist, whose rape story was just a lie which militants were willing to use to score the government on the US-RP Visiting Forces Agreement. Before the court found Smith guilty, columnist Sassy Lawyer of the Manila Standard, lawyer and columnist Connie Veneracion wrote, "One of the popular theories going around is that this is a case of extortion ...", concluding, "Without passing on the truth or falsity of such a claim, ..., extortion is a matter for the defense to establish as a clear motive supported by relevant evidence. Character is not sufficient evidence. Only those without real evidence rely on guesswork, innuendoes and trial by publicity." Nationalistic Filipinos believe that the Visiting Forces Agreement allows for crimes against civilians in the Philippines to continue unjustly without legal consequences.
Suzette's blood alcohol level that night, as revealed by the Blood Alcohol Content (BAC) approximation that was calculated by a team of toxicologists led by Dr. Kenneth Hartigan Go, was pegged at 400 mg/dL-445 mg/dL at its peak that night. However, a BAC test was never conducted on Suzette but it was based on her behavioral manifestations as reported by witnesses and on Suzette's own accounts of the drinks she had consumed that night.
Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant Chad Carpentier were acquitted due to lack of evidence.
Smith later appealed the case to Court of Appeals.
Some Philippine solons, notably Senator Loren Legarda
, expressed a different view. In a press statement, Legarda pinpointed her perception of the role of the US in Suzette's decision.
On February 8, 2009, St. Louis, Missouri's online news, STLtoday.com, featured an interview article of Smith's parents, Jim and Donna Smith, wherein they shared their agony and said that they believe that Daniel Smith was innocent of the rape charges. They also said that his case became a pawn in a political drama and that the case was not about Smith and Suzette anymore.
Senator Ana Consuelo "Jamby" Madrigal, a Suzette supporter, believes “perhaps there was a deal [that was] too good to refuse”. Suzette's lawyer, Evalyn Ursua suspects that the Malacanang Palace (Philippine President's Office) could be behind the issuance sworn affidavit.
On the contrary, Speaker Eduardo Ermita said that the recantation had come as a surprise to the government and that the government had nothing to do with it. Speaker Prospero "Boy" Nograles, Jr. and Marikina Congressman Marcelino Teodoro said that politicizing the issue through baseless charges would not help the country. Speaker Nograles also said that, “It’s the victim’s sole and very personal decision here. The woman is old enough and intelligent enough to make up her own mind. Why should Palace be involved when it was trying to get justice for the victim?”. Congressman Teodoro added that the allegations of Lawyer Ursua that the Malacanang Palace had a hand in the retraction should be proven.
Suzette's mother said that nobody pressured Nicole. She also said that it was unlikely that they would ask for help from the Philippine Government because "the government has never helped us."
Suzette's mother said Suzette left the Philippines in mid-March for the US for good to join her fiance of two years who is in the US Military and that she had been working on obtaining her US visa for a long time. According to Ninoy Aquino International Airport and Philippine Bureau of Immigration, Suzette flew to Japan and that they didn't have a record of her connecting flight to the US. Susan appealed to the public to allow Suzette to live a normal life.<
According to Justice Secretary Raul Gonzalez, all he knew was that Suzette wanted assistance from the Philippine Government in securing a visa for Italy where her brother reportedly stays. He also said that Suzette could face a perjury case for lying under oath which was contradicted by House Foreign Affairs Committee Chairman Antonio Cuenco. Chairman Cuenco said that since Suzette had doubts on what she said during the trial, that didn't make her a perjurer.
He added that he suspects that anti-US military groups in the country might have originally pressured and "brainwashed" Suzette to pursue the alleged rape charges against Smith and that everybody were taken for a ride.
Secretary Gonzalez added that maybe Suzette's lawyer, Evalyn Ursua, and the groups who were supporting Suzette told her to pursue the alleged rape case. He added that if Ursua will be found guilty of perjury and for offering false testimony, she could be penalized from prison mayor (six to 20 years) to reclusion perpetua (40 years).
Secretary Gonzalez also said that Suzette's recantation statement won't hold water because her affidavit is just a scrap of paper. He also added that Suzette's affidavit may not be admitted as new evidence because it should have been introduced during the 2006 trial.
Interior Undersecretary Marius Corpus said that Daniel Smith will not be cleared of the rape case and cannot go until the Court of Appeals junk the case. The case was in Court of Appeals for more than 2 years wherein Smith had always insisted that there was a consensual sex between him and Suzette. The last time Interior Undersecretary Corpus visited Smith in US Embassy in February 2009, he said that Smith told him that he was innocent of the rape case and that there was a misappreciation of the facts by the trial court.
Zambales Congresswoman Mitos Magsaysay, member of Arroyo's administration party and whose district covers where the incident occurred, said that Suzette did not originally complain of rape when she talked to her on November 1, 2005 (the day of the incident). Congresswoman Magsaysay also said that the new affidavit that Suzette submitted is consistent on what Suzette, the Starex van driver Timoteo Soriano, Suzette's sister and the other witnesses told her at the time. She also said that the concern of Suzette then was her mother's anger that she stayed out late that night. Congresswoman Magsaysay further stated that it is very obvious that some people took over and influenced Suzette to sue Smith for rape and that there were some changes on the details of the incident on the affidavit that Suzette filed in 2005, apparently by individuals and groups who have vested interest on the case.
On the other hand, a women's rights group, EnGende Rights, believe that Suzette's affidavit “'should not be given weight'” because the timing is not only "suspicious," but also because Philippine Supreme Court decisions in a lot of cases show that witness recantations are not given weight.
On May 24, 2009, Suzette's former lawyer Evalyn Ursua, Former Senator Leticia Ramos-Shahani and the militant groups Gabriela and Bagong Alyansang Makabayan filed a petition to Supreme Court to investigate Suzette's recantation affidavit. The petition to investigate the affidavit was approved by Chief Justice Reynato Puno on May 25, 2009. The group also asked the Supreme Court to stop the Court of Appeals from resolving Smith's appeal pending the result of the investigation that they were seeking.
Meanwhile, Suzette's mother, Susan Nicolas, was angry and called on Suzette's former lawyer, Evalyn Ursua, and like-minded groups and individuals to stop initiating action on the case.
Philippine Supreme Court Rule 121 Section 2b of Criminal Law Procedures states that the court shall grant a new trial if a new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably changed the judgment.
The leftists and militant groups Gabriela (with Lisa Maza and Luzviminda Ilagan), Bayan Muna (with Teodoro "Teddy" Casino, Joel Virador and Satur Ocampo), Akbayan (with Riza Hontiveros), EnGende Rights (with Clara Rita Padilla), Volunteers Against Crimes and Corruptions (with Dante Jimenez), Bagong Alyansang Makabayan (with Renato Reyes Jr.), Task Force Subic (with Princess Nemenzo), The Public Interest Law, Quezon Congressman Lorenzo Tanada III, Senators Ana Consuelo "Jamby" Madrigal, Loren Legarda, Pia Cayetano, Rodolfo Biazon, Francis Escudero, Manny Villar and Francis Pangilinan, Quezon City Congressman Matias Defensor and Congresswoman Nanette Castelo-Daza, Albay Congressman Edcel Lagman, Makati Mayor Jejomary Binay, Dr. Quintin Doromal, Lawyers Evalyn Ursua, Romulo Capulong and Harry Roque, Clara Padilla, and Former Senators Jovito Salonga, Francisco Tatad and Wigberto Tanada were among Suzette's supporters on her rape lawsuit against Smith and they are known to be anti-VFA.
According to Smith's lawyer, Jose Justiniano, Suzette's family contacted him on March 12, 2009 and asked for a meeting with him and the other lawyer who is also representing Smith. Suzette told them that she fired her lawyer and that she wished to accept the 100,000 Pesos (equivalent to US $2000) that Judge Pozon ordered Smith to pay her for moral and compensatory damages in December 2006.
At the time of Smith's sentencing, Suzette had wanted Smith to be punished of death penalty instead of the 40 year imprisonment sentence that Judge Pozon imposed.
According to the Dizon draft ponencia Smith is "innocent beyond reasonable doubt.” Court of Appeals Justice Agustin Dizon, who retired on June 27, 2008, had written that the accused should be acquitted both on the technical and substantive aspects.
Dizon said that the issues of “force and intimidation” and “unconsciousness” via “intoxication” cannot be appreciated because such evidence failed to convince him to convict Smith.
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 Suzette 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.
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 Suzette was “unconscious” or “intoxicated.” It will be recalled that Suzette 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.
Doubt was inculcated in the mind of Dizon as to the factual circumstances of the crime of rape between Suzette and Smith.
Dizon was not convinced that Suzette was raped at all.
He said that the use of force applied to Suzette 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 Suzette 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.
On May 2008, Court of Appeals Justice Celia Librea-Leagogo, the senior member of the division, did not sign the Dizon ponencia and asked for two months to review the case. Dizon was the junior justice of the division at the time.
Leagogo was “meticulous” about the Dizon draft and she allegedly feared that this might go against public opinion and the Court of Appeals might be the subject of criticism.
Surprisingly, even before Dizon retired, Leagogo inhibited herself from handling the case, saying that she was a friend of one of Smith’s lawyers.
The justices who talked to Manila Times said they agreed with Dizon’s draft ruling, but unfortunately, they added, he ran out of time. He was not able to hand down the ruling before reaching the mandatory retirement age of 70.
These developments delayed the signing of the draft decision and forced the 17th Division 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.
Several appellate court justices who talked to 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 Manila Times by the Court of Appeals justices even before the March 12, 2009 affidavit of desistance manifested by Suzette to the appellate court.
The Manila Times source said that the current ponente of the case, Justice Monina Arevalo-Zenarosa vowed to issue her ruling before her retirement in August 2009.
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.
On March 26, 2009, Suzette's former lawyer, Evalyn Ursua, and Suzette's supporter on her rape case against Smith, Teresita Ang-See, told Manila Times over the phone that they had asked Presiding Justice Conrado Vasquez of the appellate court to ferret out that source.
Ang-See personally went to the chambers of Vasquez on Wednesday to give him a copy of their petition to the Supreme Court (SC) entitled “Petition for Investigation of the Execution of the Supposed Nicole Sworn Statement date 12 March 2009 and the Improper Release of the Court of Appeals Draft Ruling of Acquittal.”
Manila Times told Ang-See and Ursua that the story it ran on March 23, 2009 was a product of “enterprise journalism,” not of a supposed conspiracy to help the cause of Smith. It reserved its right not to name the source of the “leaked draft decision.”
Ang-See said that their petition before the High Tribunal was an administrative complaint for disbarment of the justices who had shown bias for the acquittal of Smith.
Ursua said that she had filed the petition not as a lawyer for Suzette but as a citizen of the Philippines and as an officer of the court.
On 23 April 2009, the Court of Appeals (CA) reversed Smith’s conviction, saying that no evidence was presented in court to show that the American had employed force, threat and intimidation on Nicole. The court ruled that Smith's sexual tryst with "Nicole" was "a spontaneous, unplanned romantic episode," and that they were "carried away by their passions."
The Court of Appeals also said that "Suddenly the moment of parting came and the marines had to rush to the ship. In that situation, reality dawned on Nicole – what her audacity and reckless abandon, flirting with Smith and leading him on, brought upon her”.
“That must have been shattering, but added to this was the mocking moments she heard from inside the van; ‘leave that bitch!’ or words to that effect-which really broke her as she shouted back in denial: I am not a bitch,” it said.
The court said: “No evidence was introduced to show force, threat and intimidation applied by the accused upon Nicole even as prosecution vainly tried to highlight her supposed intoxication and alleged unconsciousness at the time of the sexual act.”
“As in this case, a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence, we must acquit,” read the CA decision.
The CA said the Makati Regional Trial Court ignored and overlooked circumstances surrounding the intoxication of Nicole and contusions on her body when it convicted Smith of the crime of rape.
“The degree of Nicole’s supposed intoxication was not clearly established,” read the CA decision.
The CA said Dr. Kenneth Go, a toxicology expert, testified in court that no blood test was conducted on Nicole, which could have proven her intoxication.
“The degree of Nicole’s supposed intoxication was not clearly established,” read the CA decision.
“From the narration, after draining all those drinks of Sprite Vodka, B-52s, Singaporean sling, B-53 and half a pitcher of Bullfrog, although feeling dizzy, she danced with Smith through all four songs for about 15 minutes. She did not drop on the floor nor did she vomit.”
The CA said the trial court based its findings of Nicole’s intoxication on “mere observations of witnesses,” not on scientific grounds.
“If Nicole was really drunk, she would have had a hard time rising up, much more standing up, or she would have just dropped, a common experience among Filipino girls,” read the CA decision.
The CA rejected the trial court’s findings that “there may be forcible entry” to explain the contusions in Nicole’s genitals.
“Even in consensual sex, contusions could be inflicted by finger grabs, as in Nicole’s case,” the CA decision quoted the testimony of Dr. Rolando Marfil Ortiz II, who was presented as medico legal officer.
Citing a 1999 case, the CA said, “When there appears on record that the trial court has overlooked, ignored or disregarded some fact or circumstance of weight or significance that, if considered, would alter the results, this Court may disregard the findings of the trial court and make its own conclusion.”
The CA described as “deceptive posturing” the portrayal of Nicole as “a demure provinciana lass.”
“Tearfully, bewildered, alone and confused, in a strange place, dumped in a curb literally with her pants down, she remembered her mother and what she would say,” read the CA decision. “She remembered too, her boyfriend Brian. She had to hit back in the only way she could – to salvage, at least, a vestige of her self-esteem.”
The acquittal was written by Associate Justice Monina Arevalo-Zenarosa. Two other women Associate Justices of the Court of Appeals' Special 11th Division – Remedios Salazar-Fernando and Myrna Dimaranan-Vidal – concurred with the decision.
. In Philippine society, it is a heinous crime punishable by life imprisonment
.
of 1930, now defines the crime of rape as follows:
, as amended by the Anti-Rape Law of 1997, the court sentenced Smith to reclusion perpetua
and ordered his temporary detention at the Makati City jail.
The custody issue was brought up by the US embassy in Manila and the Philippine Justice and Foreign Affairs departments. An agreement was then signed that as the case was not final and closed because it could be brought up to the Philippine Court of Appeals
, the custody of Smith should be transferred back to the US embassy in keeping with the provisions of the VFA. The Makati Regional Trial Court reiterated its decision to detain Smith at the city jail temporarily.
The custody issue was brought up to the Philippine Court of Appeals
and on January 4, 2007, the court said that the dispute could not be decided upon because a new agreement that had resulted in Smith's midnight transfer back to the US Embassy had rendered the case moot
. The agreement referred was that signed by Philippine Foreign Secretary
Alberto Romulo
and US Ambassador
Kristie Kenney
on December 22 stating that Smith should be held at the US Embassy compound. Smith was transferred back to the US Embassy on December 29—seven days after the agreement had been signed.
The appellate court also affirmed Judge Benjamin Pozon's decision to detain Smith at the city jail temporarily. The court upheld Philippine exclusive jurisdiction over a convict and that the convict should be detained in a Philippine facility. By this decision, the court asserted the power of the Philippine government
over US troops. As much as the court found itself disagreeing with the executive branch
of the Philippine Government and the US Embassy on the custody issue, it decided to leave it up to the government to decide.
Appellate court
Justice
Apolinario Bruselas Jr. wrote in his 38-page ruling: "Courts may not directly intervene in the exercise of diplomacy no matter how proudly or meekly, strongly or weakly, such exercise may be conducted by the appropriate political organ of government." Explaining this, Brusales paraphrased former Associate Justice
of the U.S. Supreme Court
Oliver Wendell Holmes, Jr.
by saying "... as Justice Holmes once wisely observed, the other branches of Government are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." The Court of Appeals cited the case of Missouri, Kansas and Texas Railroad Co. vs. May as the source of the quote. It developed, however, that Holmes had actually written it as "... legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." The quote, apparently, originated from a dissenting opinion written by Justice John M. Harlan II
, wherein he quoted Holmes as if the word "legislatures" meant the "other branches of the Government".
While the appellate court found the case moot, in the sense of "not worthy of consideration or discussion because it has been resolved or no longer needs to be resolved", others believe that the case is still open for discussions and debates.
In June 0f 2008, the Manila Times
reported that, due to the scheduled mandatory June 27 retirement of Associate Justice Agustin Dizon, the reviewing justice of the Court of Appeals 16th Division, which is handling the rape case, the hearings may have to start from the beginning after a replacement reviewing justice is assigned. Quoting sources at the court, the Times said, "'The new reviewing justice can’t just take over the notes and draft report of the case. He or she will have to start from scratch,' the source explained.". The Times explained, "hearings may have to start from the beginning to avoid possible accusations of partiality by the new justice assigned."
The Times also reported that case has become so controversial that appellate justices seem to be avoiding it. One after another, justices assigned to the 16th division have inhibited themselves from the case. According to the Times, Associate Justice Vicente Veloso quit as head of that division because his daughter is a member of the law firm defending Smith; Associate Justice Celia Librea-Leagogo inhibited herself, citing her friendship with one of the lawyers of Smith; Associate Justice Apolinario Bruselas Jr., is expected to inhibit himself because he wrote a Court of Appeals decision on the custody of Smith. Finally, the times reported speculation that the decision would likely turn in favor of Smith because of President Gloria Arroyo’s upcoming US trip, where she is scheduled to meet with President George W. Bush.
In September 2008, questions were raised about whether or not Smith was still in detention in the Embassy. This led to a surprise visit to the Embassy by the head of the presidential commission on the Visiting Forces Agreement, which confirmed that Smith was still in detention there.
On September 19, 2008 attorneys representing Nicole's filed an indirect contempt
motion against the government's transfer of Smith from Makati City
jail
in December 2006, to the Embassy of the United States in Manila
. During the oral arguments, Associate Justice Presbeterio Velasco raised the possibility that the petitioners represented by Agabin could be liable for forum shopping
because they had also filed another petition related to the Smith case before the Court of Appeals. Agabin said his clients’ complaint before the Supreme Court was different from that before the appellate court. During those arguments Pacifico Agabin, attorney for the petitioners, argued the questions (1) whether the right to custody of Daniel Smith during the pendency of his appeal belongs to the Philippine government or US authorities and (2) whether there was contempt of court committed in the transfer of the accused from the custody of the courts to that of the US authorities pending appeal. The petition also argued that the agreement between Foreign Affairs Secretary Alberto Romulo and US Ambassador to the Philippines Kristie Kenney transferring the custody of Smith to US authorities was unconstitutional, and contended that the Visiting Forces Agreement (VFA) violates the exclusive power of the Philippine Supreme Court to promulgate rules and procedures in all courts under the 1987 Constitution. On February 11, 2009, The Supreme Court of the Philippines
sitting En banc
decided 9-4 "The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court."
(MDT). One article of MDT specifies that the two countries will maintain and develop their individual and collective capacity to resist armed attack. In consequence of that article, US and RP personnel visit the territory of one another to engage in training and in joint exercises. Among other items, the VFA addresses treatment of personnel from one signatory who are accused of having committed crimes while visiting the territory of the other signatory. Partly as a result of the controversy growing out of this case, especially on the custody issue, the Philippine Congress
has considered terminating the VFA.
On January 9, 2006, Senator Miriam Defensor-Santiago
, head of the Senate Committee on Foreign Relations, introduced a draft resolution
calling for the Senate of the Philippines
to conduct inquiries into the matter.
After first reading
on January 16, 2006, the resolution was referred to two Senate committees.
Article 5 item 6 of VFA (Criminal Jurisdiction) states, in part, that:
and with questions of jurisdiction over US military personnel convicted of having committed crimes on Philippine soil, the US strongly reiterated Philippine obligations to adhere to its obligations under the VFA. The US is the biggest trading partner of the Philippines. It is also the biggest military and development aid
donor to this former US colony
. When Smith was incarcerated under Philippine custody, the US announced the cancellation of Balikatan 2007
(a joint US/RP military exercise
which had been previously scheduled). After the Philippine government had surrendered Smith back to US custody, the US government later announced the resumption of the Balikatan 2007 exercise.
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
involving a Filipina
Filipino people
The Filipino people or Filipinos are an Austronesian ethnic group native to the islands of the Philippines. There are about 92 million Filipinos in the Philippines, and about 11 million living outside the Philippines ....
and four US Marines
United States Marine Corps
The United States Marine Corps is a branch of the United States Armed Forces responsible for providing power projection from the sea, using the mobility of the United States Navy to deliver combined-arms task forces rapidly. It is one of seven uniformed services of the United States...
. It caught wide media
Mass media
Mass media refers collectively to all media technologies which are intended to reach a large audience via mass communication. Broadcast media transmit their information electronically and comprise of television, film and radio, movies, CDs, DVDs and some other gadgets like cameras or video consoles...
coverage and achieved political
Politics
Politics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
and international
International relations
International relations is the study of relationships between countries, including the roles of states, inter-governmental organizations , international nongovernmental organizations , non-governmental organizations and multinational corporations...
significance because of the Visiting Forces Agreement (VFA) between the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and the Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
, which had been the subject of protests from the beginning.
Initially, the accuser, Suzette Nicolas, alleged that she was gang-raped. After a few days, she then said that only Lance Corporal Daniel Smith raped her. She also said that just before midnight of November 1, 2005, Smith rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
d her inside a moving Starex
Hyundai Starex
The Hyundai Starex is a van built by the Hyundai Motor Company in South Korea andIndonesia.First generation models were known in Europe as the Hyundai H-1 and as the Hyundai H200 in the Netherlands...
van at Alava Pier in Subic
Subic, Zambales
Subic is a 1st class municipality in the province of Zambales, Philippines. According to the latest census, it has a population of 77,118 people in 13,882 households....
. Suzette also alleged that Smith's other companions, Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant
Staff Sergeant
Staff sergeant is a rank of non-commissioned officer used in several countries.The origin of the name is that they were part of the staff of a British army regiment and paid at that level rather than as a member of a battalion or company.-Australia:...
Chad Carpentier, were inside the van cheering Smith on as it happened. Smith countered the charges saying that what occurred between him and Suzette was consensual sex.
On December 4, 2006, after numerous court hearings over the course of a year that were open to the public and the media, Judge Benjamin Pozon of the Makati City
Makati City
The City of Makati is one of the 17 cities that make up Metro Manila, one of the most populous metropolitan areas in the world. Makati is the financial center of the Philippines and one of the major financial, commercial and economic hubs in Asia...
Regional Trial Court
Trial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
Branch 139 found Smith guilty of rape, sentencing him to reclusión perpetua
Reclusion perpetua
Reclusión perpetua is a particular kind of sentence of imprisonment in the Philippines, Argentina, and several other countries....
, while the three others were acquitted. Smith was confined in the US embassy in Manila, despite the judge's order that he be confined in a Philippine jail, and despite protests from Suzette's camp.
On April 23, 2009, the Court of Appeals
Philippine Court of Appeals
The Court of Appeals of the Philippines is the Philippines' second highest judicial court, just after the Supreme Court. The court consists of 68 Associate Justices and 1 Presiding Justice...
headed by three Filipino female Justices, Associate Justices Monina Arevalo-Zenarosa, Remedios Salazar-Fernando and Myrna Dimaranan-Vidal, reversed the decision of the lower court and ordered Smith's immediate release, stating that "... a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence we must acquit."
Background
Suzette, who grew up in the Southern Command in Zamboanga CityZamboanga City
The City of Zamboanga : is a highly urbanized, independent and a chartered city located in Mindanao, Philippines....
, was invited to Subic by a friend, US Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
Petty Officer
Petty Officer
A petty officer is a non-commissioned officer in many navies and is given the NATO rank denotion OR-6. They are equal in rank to sergeant, British Army and Royal Air Force. A Petty Officer is superior in rank to Leading Rate and subordinate to Chief Petty Officer, in the case of the British Armed...
Christopher Mills, together with her stepsister, Anna Liza. Mills was a family friend whom they met in Zamboanga, where joint US-Philippine military exercises had been held over the years. Suzette's family operated a canteen which was frequented by soldiers. Suzette, a management accounting graduate, managed the said canteen and in the process befriended military personnel, including Mills and her boyfriend, Brian Goodrich of the 12th Marines Operations Platoon which is based in Okinawa.
Upon the invitation of Mills, and with Goodrich's knowledge, Suzette and Anna Liza flew to Subic. On the night of November 1, 2005, after eating pizza for dinner, Mills invited the ladies to the Neptune Bar for drinks. Mills later left the bar, leaving Suzette and Anna Liza behind in the company of other Marines dancing and having more drinks. Forty-five minutes later, Mills returned and found only Anna Liza who had been looking for the missing Suzette. The two then started a search for her.
Around this time, Suzette had been found at the Alavar Pier. She was found extremely drunk and crying with her jeans worn inside out and a condom sticking out of her underwear. Several witnesses surfaced, from the security guard
Security guard
A security guard is a person who is paid to protect property, assets, or people. Security guards are usually privately and formally employed personnel...
of the bar who saw Smith carrying a drunk Suzette to the van to several other people who saw the Marines dumping Suzette at the pier and including the driver of the van rented by the Marines. At first, the driver, Timoteo Soriano Jr., accused the Marines of raping Suzette. Later, he retracted his statement saying he was forced by police to sign the affidavit accusing the Marines. When the Marines were questioned, they denied the charges. Smith claimed that he and Suzette had had consensual sex.
Two other accused Marines were released from custody after they were able to prove they were buying pizza at the time of the incident and were not in the van.
Trial
As soon as the Philippine Department of JusticeDepartment of Justice (Philippines)
The Department of Justice , abbreviated as DOJ, is the executive department of the Philippine government responsible for upholding the rule of law in the Philippines...
started working on the case, it became clear that the rape case and the custody issue of the Marines had political significance. During the course of trial, in accordance with the terms of the VFA, the accused were in the custody of the US Embassy. Throughout the trial, the issue of U.S. vs. Philippine custody on the accused U.S. Marines was the focus of street demonstrations
Demonstration (people)
A demonstration or street protest is action by a mass group or collection of groups of people in favor of a political or other cause; it normally consists of walking in a mass march formation and either beginning with or meeting at a designated endpoint, or rally, to hear speakers.Actions such as...
and protests by political groups
Political party
A political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...
and women's rights advocates, and it was a hot news item in the Philippine press.
However, some Filipinos and expatriates believe that Suzette was just an extortionist, whose rape story was just a lie which militants were willing to use to score the government on the US-RP Visiting Forces Agreement. Before the court found Smith guilty, columnist Sassy Lawyer of the Manila Standard, lawyer and columnist Connie Veneracion wrote, "One of the popular theories going around is that this is a case of extortion ...", concluding, "Without passing on the truth or falsity of such a claim, ..., extortion is a matter for the defense to establish as a clear motive supported by relevant evidence. Character is not sufficient evidence. Only those without real evidence rely on guesswork, innuendoes and trial by publicity." Nationalistic Filipinos believe that the Visiting Forces Agreement allows for crimes against civilians in the Philippines to continue unjustly without legal consequences.
Conviction
Lance Corporal Daniel Smith was found guilty beyond reasonable doubt of rape by the Makati Regional Trial Court Branch 139 on December 4, 2006. The court found him guilty on the premise that Suzette was severely intoxicated that night and was therefore deprived of reason to consent to sex and incapable of sensing or fighting off danger. The court relied on the definition of rape in Article 335 of the Revised Penal Code, which says:
ART. 335. When and how rape is committed
Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation
2. When the woman is deprived of reason or otherwise unconscious
3. When the woman is under twelve years of age or is demented.
Suzette's blood alcohol level that night, as revealed by the Blood Alcohol Content (BAC) approximation that was calculated by a team of toxicologists led by Dr. Kenneth Hartigan Go, was pegged at 400 mg/dL-445 mg/dL at its peak that night. However, a BAC test was never conducted on Suzette but it was based on her behavioral manifestations as reported by witnesses and on Suzette's own accounts of the drinks she had consumed that night.
Lance Corporals Keith Silkwood and Dominic Duplantis and Staff Sergeant Chad Carpentier were acquitted due to lack of evidence.
Smith later appealed the case to Court of Appeals.
Recantation
On March 17, 2009, Suzette's mother submitted a sworn affidavit from Suzette dated March 12, 2009 saying she wasn't sure that she was raped. She said that her conscience had been bothering her and that she wanted to move on with her life. She also fired her lawyer, Evalyn Ursua.Some Philippine solons, notably Senator Loren Legarda
Loren Legarda
Loren Legarda is a Filipino broadcast journalist, environmentalist, and politician of Visayan ancestry, notable as the only female to top two senatorial elections . During the 2004 Philippine general election, she ran for the position of Vice-President as an Independent with Fernando Poe, Jr...
, expressed a different view. In a press statement, Legarda pinpointed her perception of the role of the US in Suzette's decision.
"America’s act of buying Nicole’s silence is a precedent. They are bound to do this every time. While America keeps its processes intact and its soldiers protected, our morality as a nation is trampled upon, our justice system spat on.”
On February 8, 2009, St. Louis, Missouri's online news, STLtoday.com, featured an interview article of Smith's parents, Jim and Donna Smith, wherein they shared their agony and said that they believe that Daniel Smith was innocent of the rape charges. They also said that his case became a pawn in a political drama and that the case was not about Smith and Suzette anymore.
Senator Ana Consuelo "Jamby" Madrigal, a Suzette supporter, believes “perhaps there was a deal [that was] too good to refuse”. Suzette's lawyer, Evalyn Ursua suspects that the Malacanang Palace (Philippine President's Office) could be behind the issuance sworn affidavit.
On the contrary, Speaker Eduardo Ermita said that the recantation had come as a surprise to the government and that the government had nothing to do with it. Speaker Prospero "Boy" Nograles, Jr. and Marikina Congressman Marcelino Teodoro said that politicizing the issue through baseless charges would not help the country. Speaker Nograles also said that, “It’s the victim’s sole and very personal decision here. The woman is old enough and intelligent enough to make up her own mind. Why should Palace be involved when it was trying to get justice for the victim?”. Congressman Teodoro added that the allegations of Lawyer Ursua that the Malacanang Palace had a hand in the retraction should be proven.
Suzette's mother said that nobody pressured Nicole. She also said that it was unlikely that they would ask for help from the Philippine Government because "the government has never helped us."
Suzette's mother said Suzette left the Philippines in mid-March for the US for good to join her fiance of two years who is in the US Military and that she had been working on obtaining her US visa for a long time. According to Ninoy Aquino International Airport and Philippine Bureau of Immigration, Suzette flew to Japan and that they didn't have a record of her connecting flight to the US. Susan appealed to the public to allow Suzette to live a normal life.<
According to Justice Secretary Raul Gonzalez, all he knew was that Suzette wanted assistance from the Philippine Government in securing a visa for Italy where her brother reportedly stays. He also said that Suzette could face a perjury case for lying under oath which was contradicted by House Foreign Affairs Committee Chairman Antonio Cuenco. Chairman Cuenco said that since Suzette had doubts on what she said during the trial, that didn't make her a perjurer.
Justice Secretary Gonzalez further stated that he should have granted Suzette's wish to remove the "meaty" portions of her affidavit in 2005 when she filed the rape case against Smith. He also added that if he helped her in removing those portions, there "never" would have been a case.
He added that he suspects that anti-US military groups in the country might have originally pressured and "brainwashed" Suzette to pursue the alleged rape charges against Smith and that everybody were taken for a ride.
Secretary Gonzalez added that maybe Suzette's lawyer, Evalyn Ursua, and the groups who were supporting Suzette told her to pursue the alleged rape case. He added that if Ursua will be found guilty of perjury and for offering false testimony, she could be penalized from prison mayor (six to 20 years) to reclusion perpetua (40 years).
Secretary Gonzalez also said that Suzette's recantation statement won't hold water because her affidavit is just a scrap of paper. He also added that Suzette's affidavit may not be admitted as new evidence because it should have been introduced during the 2006 trial.
Interior Undersecretary Marius Corpus said that Daniel Smith will not be cleared of the rape case and cannot go until the Court of Appeals junk the case. The case was in Court of Appeals for more than 2 years wherein Smith had always insisted that there was a consensual sex between him and Suzette. The last time Interior Undersecretary Corpus visited Smith in US Embassy in February 2009, he said that Smith told him that he was innocent of the rape case and that there was a misappreciation of the facts by the trial court.
Zambales Congresswoman Mitos Magsaysay, member of Arroyo's administration party and whose district covers where the incident occurred, said that Suzette did not originally complain of rape when she talked to her on November 1, 2005 (the day of the incident). Congresswoman Magsaysay also said that the new affidavit that Suzette submitted is consistent on what Suzette, the Starex van driver Timoteo Soriano, Suzette's sister and the other witnesses told her at the time. She also said that the concern of Suzette then was her mother's anger that she stayed out late that night. Congresswoman Magsaysay further stated that it is very obvious that some people took over and influenced Suzette to sue Smith for rape and that there were some changes on the details of the incident on the affidavit that Suzette filed in 2005, apparently by individuals and groups who have vested interest on the case.
On the other hand, a women's rights group, EnGende Rights, believe that Suzette's affidavit “'should not be given weight'” because the timing is not only "suspicious," but also because Philippine Supreme Court decisions in a lot of cases show that witness recantations are not given weight.
On May 24, 2009, Suzette's former lawyer Evalyn Ursua, Former Senator Leticia Ramos-Shahani and the militant groups Gabriela and Bagong Alyansang Makabayan filed a petition to Supreme Court to investigate Suzette's recantation affidavit. The petition to investigate the affidavit was approved by Chief Justice Reynato Puno on May 25, 2009. The group also asked the Supreme Court to stop the Court of Appeals from resolving Smith's appeal pending the result of the investigation that they were seeking.
Meanwhile, Suzette's mother, Susan Nicolas, was angry and called on Suzette's former lawyer, Evalyn Ursua, and like-minded groups and individuals to stop initiating action on the case.
Susan also demanded to know why Ursua was “asking for an investigation when we were the ones who approached [Smith’s lawyers] so we can get the [P100,000 court-awarded civil damages] intended for us.” Pertaining to Ursua, Suzette's mother added, “What does she want to happen? I’m really angry. Why can’t she just accept that we don’t want her services anymore?”
Philippine Supreme Court Rule 121 Section 2b of Criminal Law Procedures states that the court shall grant a new trial if a new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably changed the judgment.
The leftists and militant groups Gabriela (with Lisa Maza and Luzviminda Ilagan), Bayan Muna (with Teodoro "Teddy" Casino, Joel Virador and Satur Ocampo), Akbayan (with Riza Hontiveros), EnGende Rights (with Clara Rita Padilla), Volunteers Against Crimes and Corruptions (with Dante Jimenez), Bagong Alyansang Makabayan (with Renato Reyes Jr.), Task Force Subic (with Princess Nemenzo), The Public Interest Law, Quezon Congressman Lorenzo Tanada III, Senators Ana Consuelo "Jamby" Madrigal, Loren Legarda, Pia Cayetano, Rodolfo Biazon, Francis Escudero, Manny Villar and Francis Pangilinan, Quezon City Congressman Matias Defensor and Congresswoman Nanette Castelo-Daza, Albay Congressman Edcel Lagman, Makati Mayor Jejomary Binay, Dr. Quintin Doromal, Lawyers Evalyn Ursua, Romulo Capulong and Harry Roque, Clara Padilla, and Former Senators Jovito Salonga, Francisco Tatad and Wigberto Tanada were among Suzette's supporters on her rape lawsuit against Smith and they are known to be anti-VFA.
According to Smith's lawyer, Jose Justiniano, Suzette's family contacted him on March 12, 2009 and asked for a meeting with him and the other lawyer who is also representing Smith. Suzette told them that she fired her lawyer and that she wished to accept the 100,000 Pesos (equivalent to US $2000) that Judge Pozon ordered Smith to pay her for moral and compensatory damages in December 2006.
At the time of Smith's sentencing, Suzette had wanted Smith to be punished of death penalty instead of the 40 year imprisonment sentence that Judge Pozon imposed.
Acquittal
On March 23, 2009, Manila Times, a Philippine newspaper, published the draft acquittal of the Court of Appeals in favor of Smith even without Suzette's recantation.According to the Dizon draft ponencia Smith is "innocent beyond reasonable doubt.” Court of Appeals Justice Agustin Dizon, who retired on June 27, 2008, had written that the accused should be acquitted both on the technical and substantive aspects.
Dizon said that the issues of “force and intimidation” and “unconsciousness” via “intoxication” cannot be appreciated because such evidence failed to convince him to convict Smith.
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 Suzette 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.
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 Suzette was “unconscious” or “intoxicated.” It will be recalled that Suzette 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.
Doubt was inculcated in the mind of Dizon as to the factual circumstances of the crime of rape between Suzette and Smith.
Dizon was not convinced that Suzette was raped at all.
He said that the use of force applied to Suzette 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 Suzette 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.
On May 2008, Court of Appeals Justice Celia Librea-Leagogo, the senior member of the division, did not sign the Dizon ponencia and asked for two months to review the case. Dizon was the junior justice of the division at the time.
Leagogo was “meticulous” about the Dizon draft and she allegedly feared that this might go against public opinion and the Court of Appeals might be the subject of criticism.
Surprisingly, even before Dizon retired, Leagogo inhibited herself from handling the case, saying that she was a friend of one of Smith’s lawyers.
The justices who talked to Manila Times said they agreed with Dizon’s draft ruling, but unfortunately, they added, he ran out of time. He was not able to hand down the ruling before reaching the mandatory retirement age of 70.
These developments delayed the signing of the draft decision and forced the 17th Division 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.
Several appellate court justices who talked to 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 Manila Times by the Court of Appeals justices even before the March 12, 2009 affidavit of desistance manifested by Suzette to the appellate court.
The Manila Times source said that the current ponente of the case, Justice Monina Arevalo-Zenarosa vowed to issue her ruling before her retirement in August 2009.
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.
On March 26, 2009, Suzette's former lawyer, Evalyn Ursua, and Suzette's supporter on her rape case against Smith, Teresita Ang-See, told Manila Times over the phone that they had asked Presiding Justice Conrado Vasquez of the appellate court to ferret out that source.
Ang-See personally went to the chambers of Vasquez on Wednesday to give him a copy of their petition to the Supreme Court (SC) entitled “Petition for Investigation of the Execution of the Supposed Nicole Sworn Statement date 12 March 2009 and the Improper Release of the Court of Appeals Draft Ruling of Acquittal.”
Manila Times told Ang-See and Ursua that the story it ran on March 23, 2009 was a product of “enterprise journalism,” not of a supposed conspiracy to help the cause of Smith. It reserved its right not to name the source of the “leaked draft decision.”
Ang-See said that their petition before the High Tribunal was an administrative complaint for disbarment of the justices who had shown bias for the acquittal of Smith.
Ursua said that she had filed the petition not as a lawyer for Suzette but as a citizen of the Philippines and as an officer of the court.
On 23 April 2009, the Court of Appeals (CA) reversed Smith’s conviction, saying that no evidence was presented in court to show that the American had employed force, threat and intimidation on Nicole. The court ruled that Smith's sexual tryst with "Nicole" was "a spontaneous, unplanned romantic episode," and that they were "carried away by their passions."
The Court of Appeals also said that "Suddenly the moment of parting came and the marines had to rush to the ship. In that situation, reality dawned on Nicole – what her audacity and reckless abandon, flirting with Smith and leading him on, brought upon her”.
“That must have been shattering, but added to this was the mocking moments she heard from inside the van; ‘leave that bitch!’ or words to that effect-which really broke her as she shouted back in denial: I am not a bitch,” it said.
The court said: “No evidence was introduced to show force, threat and intimidation applied by the accused upon Nicole even as prosecution vainly tried to highlight her supposed intoxication and alleged unconsciousness at the time of the sexual act.”
“As in this case, a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence, we must acquit,” read the CA decision.
The CA said the Makati Regional Trial Court ignored and overlooked circumstances surrounding the intoxication of Nicole and contusions on her body when it convicted Smith of the crime of rape.
“The degree of Nicole’s supposed intoxication was not clearly established,” read the CA decision.
The CA said Dr. Kenneth Go, a toxicology expert, testified in court that no blood test was conducted on Nicole, which could have proven her intoxication.
“The degree of Nicole’s supposed intoxication was not clearly established,” read the CA decision.
“From the narration, after draining all those drinks of Sprite Vodka, B-52s, Singaporean sling, B-53 and half a pitcher of Bullfrog, although feeling dizzy, she danced with Smith through all four songs for about 15 minutes. She did not drop on the floor nor did she vomit.”
The CA said the trial court based its findings of Nicole’s intoxication on “mere observations of witnesses,” not on scientific grounds.
“If Nicole was really drunk, she would have had a hard time rising up, much more standing up, or she would have just dropped, a common experience among Filipino girls,” read the CA decision.
The CA rejected the trial court’s findings that “there may be forcible entry” to explain the contusions in Nicole’s genitals.
“Even in consensual sex, contusions could be inflicted by finger grabs, as in Nicole’s case,” the CA decision quoted the testimony of Dr. Rolando Marfil Ortiz II, who was presented as medico legal officer.
Citing a 1999 case, the CA said, “When there appears on record that the trial court has overlooked, ignored or disregarded some fact or circumstance of weight or significance that, if considered, would alter the results, this Court may disregard the findings of the trial court and make its own conclusion.”
The CA described as “deceptive posturing” the portrayal of Nicole as “a demure provinciana lass.”
“Tearfully, bewildered, alone and confused, in a strange place, dumped in a curb literally with her pants down, she remembered her mother and what she would say,” read the CA decision. “She remembered too, her boyfriend Brian. She had to hit back in the only way she could – to salvage, at least, a vestige of her self-esteem.”
The acquittal was written by Associate Justice Monina Arevalo-Zenarosa. Two other women Associate Justices of the Court of Appeals' Special 11th Division – Remedios Salazar-Fernando and Myrna Dimaranan-Vidal – concurred with the decision.
Rape in the Philippines
Rape in Philippine Jurisprudence is considered a criminal offenseCrime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. In Philippine society, it is a heinous crime punishable by life imprisonment
Life imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
.
The law
The Anti-Rape Law of 1997, which amended the previous definition of rape as defined in the Revised Penal CodeRevised Penal Code of the Philippines
The Revised Penal Code contains the general penal laws of the Philippines. First enacted in 1930, it remains in effect today, despite several amendments thereto. It does not comprise a comprehensive compendium of all Philippine penal laws. The Revised Penal Code itself was enacted as Act No...
of 1930, now defines the crime of rape as follows:
Application to this case
On December 4, 2006, based on the evidences and witnesses' testimonies during the trial, the Makati Regional Trial Court found Lance Corporal Daniel Smith guilty of rape against Nicole. Under article 266-B of the Revised Penal CodeRevised Penal Code of the Philippines
The Revised Penal Code contains the general penal laws of the Philippines. First enacted in 1930, it remains in effect today, despite several amendments thereto. It does not comprise a comprehensive compendium of all Philippine penal laws. The Revised Penal Code itself was enacted as Act No...
, as amended by the Anti-Rape Law of 1997, the court sentenced Smith to reclusion perpetua
Reclusion perpetua
Reclusión perpetua is a particular kind of sentence of imprisonment in the Philippines, Argentina, and several other countries....
and ordered his temporary detention at the Makati City jail.
The custody issue was brought up by the US embassy in Manila and the Philippine Justice and Foreign Affairs departments. An agreement was then signed that as the case was not final and closed because it could be brought up to the Philippine Court of Appeals
Philippine Court of Appeals
The Court of Appeals of the Philippines is the Philippines' second highest judicial court, just after the Supreme Court. The court consists of 68 Associate Justices and 1 Presiding Justice...
, the custody of Smith should be transferred back to the US embassy in keeping with the provisions of the VFA. The Makati Regional Trial Court reiterated its decision to detain Smith at the city jail temporarily.
The custody issue was brought up to the Philippine Court of Appeals
Court of Appeals
A court of appeals is an appellate court generally.Court of Appeals may refer to:*Military Court of Appeals *Corte d'Assise d'Appello *Philippine Court of Appeals*High Court of Appeals of Turkey*United States courts of appeals...
and on January 4, 2007, the court said that the dispute could not be decided upon because a new agreement that had resulted in Smith's midnight transfer back to the US Embassy had rendered the case moot
Moot
Moot may refer to:* from Moot as an Old English language term for meeting:**Folkmoot**Jamtamót, the old assembly of Jämtland**Witenagemot, the High Council of Anglo-Saxon England...
. The agreement referred was that signed by Philippine Foreign Secretary
Secretary of State for Foreign and Commonwealth Affairs
The Secretary of State for Foreign and Commonwealth Affairs, commonly referred to as the Foreign Secretary, is a senior member of Her Majesty's Government heading the Foreign and Commonwealth Office and regarded as one of the Great Offices of State...
Alberto Romulo
Alberto Romulo
Alberto Gatmaitan Rómulo is a politician in the Philippines. He served as Foreign Secretary before and during the beginning of the administration of President Benigno Aquino III....
and US Ambassador
Ambassadors from the United States
This is a list of ambassadors of the United States to individual nations of the world, to international organizations, to past nations, and ambassadors-at-large.Ambassadors are nominated by the President and confirmed by the Senate...
Kristie Kenney
Kristie Kenney
Kristie Anne Kenney is an American diplomat and the current United States Ambassador to Thailand. She previously served as the United States Ambassador to the Republic of the Philippines. She is the first female U.S. Ambassador to both countries...
on December 22 stating that Smith should be held at the US Embassy compound. Smith was transferred back to the US Embassy on December 29—seven days after the agreement had been signed.
The appellate court also affirmed Judge Benjamin Pozon's decision to detain Smith at the city jail temporarily. The court upheld Philippine exclusive jurisdiction over a convict and that the convict should be detained in a Philippine facility. By this decision, the court asserted the power of the Philippine government
Politics of the Philippines
The Politics of the Philippines takes place in an organized framework of a presidential, representative, and democratic republic whereby the president is both the head of state and the head of government within a pluriform multi-party system...
over US troops. As much as the court found itself disagreeing with the executive branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
of the Philippine Government and the US Embassy on the custody issue, it decided to leave it up to the government to decide.
Appellate court
Philippine Court of Appeals
The Court of Appeals of the Philippines is the Philippines' second highest judicial court, just after the Supreme Court. The court consists of 68 Associate Justices and 1 Presiding Justice...
Justice
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
Apolinario Bruselas Jr. wrote in his 38-page ruling: "Courts may not directly intervene in the exercise of diplomacy no matter how proudly or meekly, strongly or weakly, such exercise may be conducted by the appropriate political organ of government." Explaining this, Brusales paraphrased former Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
of the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
by saying "... as Justice Holmes once wisely observed, the other branches of Government are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." The Court of Appeals cited the case of Missouri, Kansas and Texas Railroad Co. vs. May as the source of the quote. It developed, however, that Holmes had actually written it as "... legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." The quote, apparently, originated from a dissenting opinion written by Justice John M. Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
, wherein he quoted Holmes as if the word "legislatures" meant the "other branches of the Government".
While the appellate court found the case moot, in the sense of "not worthy of consideration or discussion because it has been resolved or no longer needs to be resolved", others believe that the case is still open for discussions and debates.
In June 0f 2008, the Manila Times
Manila Times
The Manila Times is the oldest existing English language newspaper in the Philippines. It is published daily by The Manila Times Publishing Corp. with editorial and administrative offices at 371 A...
reported that, due to the scheduled mandatory June 27 retirement of Associate Justice Agustin Dizon, the reviewing justice of the Court of Appeals 16th Division, which is handling the rape case, the hearings may have to start from the beginning after a replacement reviewing justice is assigned. Quoting sources at the court, the Times said, "'The new reviewing justice can’t just take over the notes and draft report of the case. He or she will have to start from scratch,' the source explained.". The Times explained, "hearings may have to start from the beginning to avoid possible accusations of partiality by the new justice assigned."
The Times also reported that case has become so controversial that appellate justices seem to be avoiding it. One after another, justices assigned to the 16th division have inhibited themselves from the case. According to the Times, Associate Justice Vicente Veloso quit as head of that division because his daughter is a member of the law firm defending Smith; Associate Justice Celia Librea-Leagogo inhibited herself, citing her friendship with one of the lawyers of Smith; Associate Justice Apolinario Bruselas Jr., is expected to inhibit himself because he wrote a Court of Appeals decision on the custody of Smith. Finally, the times reported speculation that the decision would likely turn in favor of Smith because of President Gloria Arroyo’s upcoming US trip, where she is scheduled to meet with President George W. Bush.
In September 2008, questions were raised about whether or not Smith was still in detention in the Embassy. This led to a surprise visit to the Embassy by the head of the presidential commission on the Visiting Forces Agreement, which confirmed that Smith was still in detention there.
On September 19, 2008 attorneys representing Nicole's filed an indirect contempt
Contempt
Contempt is an intensely negative emotion regarding a person or group of people as inferior, base, or worthless—it is similar to scorn. It is also used when people are being sarcastic. Contempt is also defined as the state of being despised or dishonored; disgrace, and an open disrespect or willful...
motion against the government's transfer of Smith from Makati City
Makati City
The City of Makati is one of the 17 cities that make up Metro Manila, one of the most populous metropolitan areas in the world. Makati is the financial center of the Philippines and one of the major financial, commercial and economic hubs in Asia...
jail
Jail
A jail is a short-term detention facility in the United States and Canada.Jail may also refer to:In entertainment:*Jail , a 1966 Malayalam movie*Jail , a 2009 Bollywood movie...
in December 2006, to the Embassy of the United States in Manila
Embassy of the United States in Manila
The Embassy of the United States of America to the Republic of the Philippines is situated in the Chancery Building of the Manila American Embassy along Roxas Boulevard in Manila...
. During the oral arguments, Associate Justice Presbeterio Velasco raised the possibility that the petitioners represented by Agabin could be liable for forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
because they had also filed another petition related to the Smith case before the Court of Appeals. Agabin said his clients’ complaint before the Supreme Court was different from that before the appellate court. During those arguments Pacifico Agabin, attorney for the petitioners, argued the questions (1) whether the right to custody of Daniel Smith during the pendency of his appeal belongs to the Philippine government or US authorities and (2) whether there was contempt of court committed in the transfer of the accused from the custody of the courts to that of the US authorities pending appeal. The petition also argued that the agreement between Foreign Affairs Secretary Alberto Romulo and US Ambassador to the Philippines Kristie Kenney transferring the custody of Smith to US authorities was unconstitutional, and contended that the Visiting Forces Agreement (VFA) violates the exclusive power of the Philippine Supreme Court to promulgate rules and procedures in all courts under the 1987 Constitution. On February 11, 2009, The Supreme Court of the Philippines
Supreme Court of the Philippines
The Supreme Court of the Philippines is the Philippines' highest judicial court, as well as the court of last resort. The court consists of 14 Associate Justices and 1 Chief Justice...
sitting En banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
decided 9-4 "The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court."
Visiting Forces Agreement
The Visiting Forces Agreement (VFA) is a 1999 agreement between the Philippines and the United States. The basis of the VFA is in the 1951 US-Philippines Mutual Defense TreatyMutual Defense Treaty (US-Philippines)
The Mutual Defense Treaty Between the Republic of the Philippines and the United States of America was signed on August 30, 1951 in Washington, D.C. between representatives of the Philippines and the United States...
(MDT). One article of MDT specifies that the two countries will maintain and develop their individual and collective capacity to resist armed attack. In consequence of that article, US and RP personnel visit the territory of one another to engage in training and in joint exercises. Among other items, the VFA addresses treatment of personnel from one signatory who are accused of having committed crimes while visiting the territory of the other signatory. Partly as a result of the controversy growing out of this case, especially on the custody issue, the Philippine Congress
Congress of the Philippines
The Congress of the Philippines is the national legislature of the Republic of the Philippines. It is a bicameral body consisting of the Senate , and the House of Representatives although commonly in the Philippines the term congress refers to the latter.The Senate is composed of 24 senators half...
has considered terminating the VFA.
On January 9, 2006, Senator Miriam Defensor-Santiago
Miriam Defensor-Santiago
Miriam Defensor Santiago is a Senator of the Philippines. She is a lawyer, former trial judge and professor of constitutional and international law. She served as the Commissioner of the Bureau of Immigration and Deportation in 1988 and the Secretary of the Department of Agrarian Reform from 1989...
, head of the Senate Committee on Foreign Relations, introduced a draft resolution
Resolution (law)
A resolution is a written motion adopted by a deliberative body. The substance of the resolution can be anything that can normally be proposed as a motion. For long or important motions, though, it is often better to have them written out so that discussion is easier or so that it can be...
calling for the Senate of the Philippines
Senate of the Philippines
The Senate of the Philippines is the upper chamber of the bicameral legislature of the Philippines, the Congress of the Philippines...
to conduct inquiries into the matter.
After first reading
Reading (legislature)
A reading of a bill is a debate on the bill held before the general body of a legislature, as opposed to before a committee or other group. In the Westminster system, there are usually several readings of a bill among the stages it passes through before becoming law as an Act of Parliament...
on January 16, 2006, the resolution was referred to two Senate committees.
Article 5 item 6 of VFA (Criminal Jurisdiction) states, in part, that:
The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.(emphasis added)
Philippine-American relations
As the Philippine government struggled with what some perceive as intrusions into their sovereigntySovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
and with questions of jurisdiction over US military personnel convicted of having committed crimes on Philippine soil, the US strongly reiterated Philippine obligations to adhere to its obligations under the VFA. The US is the biggest trading partner of the Philippines. It is also the biggest military and development aid
Development aid
Development aid or development cooperation is aid given by governments and other agencies to support the economic, environmental, social and political development of developing countries.It is distinguished...
donor to this former US colony
Commonwealth of the Philippines
The Commonwealth of the Philippines was a designation of the Philippines from 1935 to 1946 when the country was a commonwealth of the United States. The Commonwealth was created by the Tydings-McDuffie Act, which was passed by the U.S. Congress in 1934. When Manuel L...
. When Smith was incarcerated under Philippine custody, the US announced the cancellation of Balikatan 2007
Operation Enduring Freedom - Philippines
Operation Enduring Freedom – Philippines or Operation Freedom Eagle is part of Operation Enduring Freedom and the U.S. Global War on Terrorism. About 600 U.S. military personnel are advising and assisting the Armed Forces of the Philippines in the Southern Philippines...
(a joint US/RP military exercise
Military exercise
A military exercise is the employment of military resources in training for military operations, either exploring the effects of warfare or testing strategies without actual combat...
which had been previously scheduled). After the Philippine government had surrendered Smith back to US custody, the US government later announced the resumption of the Balikatan 2007 exercise.
External links
- Court of Appeals decision acquitting Daniel Smith.