Take custody of Pemberton now

With the issuance of the warrant of arrest against Pfc. Joseph Scott Pemberton of the United States Marine Corps for the murder of Jennifer Laude, it is now incumbent on the Philippine government to insist on custody over the person of Pemberton. At this juncture, all law enforcement agencies should ensure that the warrant is served on the accused. This means that the Philippine National Police and the Armed Forces of the Philippines should physically take custody of Pemberton and deliver him to Branch 74 of the Regional Trial Court, which issued the warrant of arrest.

It is our position as private prosecutors that the custody of Pemberton should be with the Philippine authorities and that he should be jailed in the same manner in which any other person charged with a crime in the Philippines is jailed.

According to the provisions of the Visiting Forces Agreement, in Article V(1)(a), Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

Further, the VFA provides, in Article V(4), 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.

While Article V(6) of the VFA allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request in “extraordinary cases” such as murder. This was the interpretation of no less than our Senate when it concurred with the Visiting Forces Agreement.

This interpretation is also in accord with Department of Justice Opinion No. 094 dated August 10, 1998 where former Secretary Serafin Cuevas, himself a retired Supreme Court Justice, stated that in extraordinary cases or cases of particular importance, the Philippines may deny the US request for custody and even demand to retain custody of the US offender.

We as private prosecutors demand therefore  that that the Philippine government immediately take custody of Pemberton. This does not only concern justice for Jennifer Laude’s family now.  It is justice for every Filipino now as well. The government must prove that is will not cower to the demands of the Americans and fully assert the rights of the Filipino people.

Anent our still unresolved motion to disqualify Olongapo City Prosecutor Emilie De Los Santos from the prosecution panel, we expect the said motion to be initially resolved by her without prejudice to appealing whatever order she may issue to the Department of Justice.

It bears stressing that while all criminal prosecutions are carried out on behalf of the state, the reality is that private prosecutors, as a matter of practice, are delegated the prosecution of the case subject to the “direct control and supervision of the public prosecutor”. This control and supervision is proof that where a private complainant retains a lawyer for the civil aspect of the case, private prosecutors are allowed to actively prosecute the case for and in behalf of the state. It is only in high profile cases that public prosecutors opt to directly participate in the prosecution for obvious reasons.

While it is our position that we are amenable to working with public prosecutors in the Laude case, my experience in the Maguindanao massacre case that it has taught me the importance of having a united prosecution team consisting of both public an private prosecutors. Already, I have shown my track record when I openly sided with the public prosecutors in the Maguindanao case when a fellow private prosecutor accused them of corruption. This proves that I have proven my professionalism in working with public prosecutors. I will not refuse to work with any of them for any other reason than the welfare of my client. My problem with Chief De Los Santos is from Day One, she has been antagonistic towards us because of her alleged prior unpleasant experience with the private prosecutor in the Smith rape case. But despite this, I tried all the tricks I knew to convinced e los Santos that I am not a carbon copy of the private prosecutor that she had disagreements with. I finally gave up when I learned that in my absence, she has not stopped her public tirades against me.

For the record, it is not just the inter-personal strains that led my co-counsel, Virgie Suarez-Pinlac and I to move to disqualify De los Santos in the case, although that would be suffice by itself. It was also because of the city prosecutor’s refusal to furnish us with a copy of the NCIS report, which had a heavy weight in the resolution of the criminal complaint, which we filed. While the De Los Santos did rule in our favor, this does not detract from the fact that she deprived us of a vital piece of evidence by the panel in their finding of probable cause. This is akin to the procedure declared unconstitutional by the Supreme Court at least thrice where then President George Bush sought to deprive respondents in Guantanamo Bay access to evidence adduced against them. According to the US Supreme Court, this kind of a procedure that deprives either of the parties to a proceeding vital evidence does not comply with minimum standards of fair play recognized by civilized nations on earth.

Worse, De los Santos made an issue when after discussion with the Laude family, we made public pictures of Jennifer at the crime scene. Yes, that was in bad taste. But the family and the legal team nonetheless decided to go public with the pictures so that the public may be informed that contrary to Pemberton’s defense, his killing of Jennifer was murder and not just homicide. Besides, that picture formed part of our filing with the Olongapo Fiscal’s office. It was not as if we did not have the said photograph from the inception of our filing.

And yet, when it came to the evidence that the DNA from the used condom found in the crime scene was not that of Pemberton, De los Santos held a special hearing, despite the fact that the case had been submitted for resolution, just to announce the adverse finding against the complainants. De Los Santos was fuming mad when we released evidence favorable to the complainant. At the same time, she had no hesitation to go public that crucial evidence, the semen, was not from Pemberton. Where is the logic in this?

In any case, while public prosecutors represent the State in the criminal case, the Supreme Court has repeatedly ruled that all lawyers in court are equal since they are all officers of the court. Certainly, the fact that private complainants have lost trust in a Public Prosecutor should be considered by the Department of Justice. As officers of the court, fiscals still have a fiduciary relationship with the victims.

I invite the city prosecutor to respond to my allegations and I will yield this space next week  for her response.


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