All-female tribunal rules no rape, only a ‘romantic episode’

CA acquits Smith

By Benjamin B. Pulta

04/24/2009

If it was all a matter of a “romantic” interlude, then romance must be a horrifying experience.

Three female justices of the Court of Appeals (CA) yesterday ruled in favor of acquitting United States Marine Lance Cpl. Daniel Smith who was earlier convicted by a Makati regional trial court of raping a Filipina while he was on furlough, ruling it as a “romantic episode.”

In a 71-page decision, the CA’s Special Eleventh Division through Monina Arevalo-Zeñarosa ruled that “on reasonable ground, accused Lance Cpl. Daniel Smith is hereby acquitted of the crime of rape as alleged in the information.”

“He is ordered released immediately unless held for other lawful cause,” the CA division ruled after two other magistrates, Remedios Fernando and Myrna Dimaranan-Vidal, concurred with the ruling.

“What we see was the unfolding of a spontaneous, unplanned romantic episode with both parties carried away by their passions and stirred up the

urgency of the moment caused probably by alcoholic drinks they took, only to be rudely interrupted when the van suddenly stopped to pick up some passengers,”the CA said.

“No evidence was presented to show force, threat and intimidation applied by the accused upon Nicole,” read the ruling issued by CA Justice Zeñarosa, referring to the victim’s code name.

The appellate court took pains to claim it had not been influenced by a sworn statement executed by the victim, Suzette Nicolas, which was reportedly prepared by Smith’s counsel. The matter is currently being investigated by the Supreme Court.

“Ultimately, it must be pointed out that in resolving the case, we disregarded the alleged recantation of Nicole submitted on March 8, 2009. Nor did we open the sealed draft decision penned by retired Justice Agustin Dizon which was attached to the records,” the CA said.

The court insisted that its “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,”

“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,” the court said adding that “her claim that she was unconscious rings hollow, delusive and untrue.”

The high-profile case prompted Washington to threaten to call off large-scale exercises with Manila until Smith was transferred to a detention center within the US embassy, where he remains two years on.

After the case went to the higher court on appeal, it acquired a new twist last month when the supposed victim made a fresh testimony casting doubt on her previous recollection that Smith had forced himself on her against her will.

Earlier this week, Smith’s lawyers were ordered by the high court to answer a petition alleging that they played a part in preparing the supposed “recantation” made by Smith’s accuser, Nicolas, who was baptized as “Nicole” by the media as her identity was then being kept secret.

In a four-page resolution, the high court required “ the concerned lawyers of Sycip Salazar Hernandez and Gatmaitan to comment within 10 days from notice on the alleged violation“.

Smith is being represented by the legal team from the said firm led by Jose Justiniano.

The said ruling also ordered CA President Justice Conrado Vasquez Jr. “ to conduct an investigation on the alleged release of a draft ruling acquitting Smith.

A petiiton wasfiled last month before the SC by individuals and groups asking the high court to investigate Daniel Smith’s defense lawyers involvement in the CA draft ruling acquitting the US Marine.

The suit also urges the high court to stop the appellate court from proceeding with the case and for the SC to conduct an investigation of what it said was “the questionable circumstances of the execution of the supposed sworn statement of Nicole dated March 12, 2009 and “to discipline, if warranted, the lawyers, including Sycip Salazar Hernandez & Gatmaitan” The latter they said may have violated ethical rules in its execution and notarization.

Petitioners said that while the investigation is being conducted,the SC should stop the CA from resolving Smith’s appeal.

The parties are questioning what it claims are improper steps taken by government lawyers as well as the defense panel in the suit. “The Office of the Solicitor General has not taken any step to ensure that the interests of the people are protected. For example, it has not made any move to ascertain whether the People’s principal witness, Nicole, indeed freely, voluntarily and intelligently executed her alleged sworn statement of March 12, 2009,”the petitioner said.

“It has not made any move either to ascertain whether unethical or illegal methods were employed by Daniel Smith’s lawyers in the execution of Nicole’s supposed sworn statement in their office. In the light of the Office of the Solicitor General’s insistence that Smith should be detained in the US Embassy until the final resolution of his appeal, despite the Supreme Court ruling of Feb. 11, 2009, the office evidently suffers from a serious conflict of interest.”

The parties also said there is no inconsistency between the new statement and the testimonies of Nicole and other witnesses and that the narrative in the sworn statement affirms “Nicole’s severe intoxication before and during the rape, which deprived her of the capacity to give free, voluntary and intelligent consent to any sexual contact, as corroborated by toxicology experts and other prosecution witnesses during the trial”. The sworn statement is not inconsistent with the testimonies of witnesses who saw the U.S. Marines dump Nicole on the side of the road “ like a pig, with her pants down and its zipper at the back, and with a condom sticking out of her panties.” Those witnesses testified that Nicole was incoherent and unable to even remember her name.

“From the sequence and timing of events, it is not difficult to conclude that everything has been orchestrated so that in the end Smith will get acquitted and the public will accept the acquittal. With the acquittal, the issue of Smith’s custody by the US Embassy, which has become legally untenable and a foreign relations nightmare to both the Philippine and US Governments, will disappear, as ably predicted by Secretary Remonde,” the parties said.

In a related development, the Philippine government can no longer go after Smith after he was acquitted of rape by an appeals court Thursday, a senior Foreign Affairs official said.

The official said the case is “considered closed” following the court’s verdict that absolved Smith of raping Filipina Suzette Nicolas at the former American military base of Subic Bay in Olongapo City , Zambales. Nicolas earlier recanted her statement.

“We cannot appeal the case anymore otherwise we will be guilty of committing double jeopardy ,” official said.

The US Embassy in Manila could not be immediately reached for comment.

The official also said that the government can not file a motion for reconsideration, saying it is only being done in civil cases. “No, we can not possibly do that. This is a criminal case. We just have to accept the court’s decision,” the official said.

Militant groups alleged that Nicolas’ recantation of her statement “was part of a grand design to preserve the Philippines-US Visiting Forces Agreement,” a bilateral defense agreement that allows American troops to train with their Filipino counterparts in the country.

The Subic rape case has sparked anew anti-US sentiments across the country with several groups and lawmakers calling for the abolition of the treaty.

The VFA, which was ratified in 1999, covers the treatment, such as the entry and exit procedures, of US troops who are in the Philippines for bilateral military exercises with the Philippine Armed Forces.

For some senators, Smith’s acquittal has raised more questions than answers.

They said it can not be helped but be suspected that the recent recantation of Nicolas, was made to lay the groundwork on the decision by the CA.

“We are disturbed by the reversal coming as it does soon after Nicole’s recantation. One cannot help but wonder if all that was done in order to lay the groundwork for this acquittal. The acquittal raises more questions than answers,” Sen. Francis Pangilinan said.

Minority Leader Aquilino Pimentel Jr. said he was no longer surprised to hear of this latest development.

“We saw it coming when the victim recanted her charges,” he said.

Sen. Francis “Chiz” Escudero, on the other hand, said this only reinforced their position that the RP-US VFA carries too high a social cost and should be immediately abrogated.

“We commiserate with the family of ‘Nicole’ on this unfortunate development and continue to pray that she overcomes the trials and challenges of starting a new life.

“At the same time, we believe this is as good a time as any to act decisively and finally abrogate the VFA. The time for debate and discussion is over; how many Nicoles must there be for us to realize that sovereignty should be absolute and non-negotiable? The issue of military security, which has long been the rationale for the VFA, takes second precedence to the more important issues of social welfare, the Filipina’s rights, and our national sovereignty,” Escudero said. Michaela P. del Callar and Angie M. Rosales

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