Daniel Smith is a US Marine that was convicted of raping a Filipina in 2005.  He was sentenced to 40 years in a Philippine jail. In the last few months there have been some interesting developments in his case:

 

MANILA, Philippines - The Supreme Court (SC) ruled yesterday that a US Marine convicted of raping a Filipina must be transferred out of his detention facility in the US Embassy.

The SC decided that Lance Corporal Daniel Smith should be detained in a facility under the Philippine government’s control and that the US Embassy did not qualify as such a place.

Voting 9-4 with two justices inhibiting, the High Tribunal ruled that the agreements signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney on Dec. 19 and 22, 2006, which allowed the detention of Smith under US military custody at the US Embassy, were “not in accordance with the Visiting Forces Agreement (VFA),” which covers procedures for crimes committed by US soldiers in the Philippines.

The 20-page decision penned by Associate Justice Adolfo Azcuna upheld the constitutionality of the VFA.

Smith was sentenced to 40 years in prison in 2006 for raping a Filipina after military exercises in Subic in Olongapo City in 2005.

He was initially detained at the Makati City Jail pending an appeal, but was later transferred to a facility inside the sprawling US Embassy compound in Manila.

Smith’s conviction prompted Washington to threaten to call off large-scale military exercises with Manila until he was turned over to the custody of the US Embassy.

Article 5, Section 10 of the VFA provides that confinement or detention of convicted US personnel should be done “by Philippine authorities.”

The SC ruled that an agreement between Philippine and American governments should be forged only on the issue of which detention facility in the country Smith should stay in.

The High Court ordered Romulo “to negotiate with the United States’ representatives for the appropriate agreement” on Smith’s return to Philippine custody.

“The confinement or detention of one United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities as provided in Art. V, Sec. 10 of the VFA,” explained the ruling.

But SC spokesman Jose Midas Marquez told reporters in an interview that the Court did not issue a deadline for the transfer of Smith to Philippine custody as it also ordered the convicted rapist to be kept in the US Embassy pending negotiations between Philippine and US authorities.

The Court also directed the Court of Appeals to resolve without delay other pending petitions related to the case, including the appeal of Smith on his rape conviction by a Makati City regional trial court.

The decision penned by Azcuna, who is retiring on Feb. 16, was affirmed by Senior Associate Justice Leonardo Quisumbing, and Associate Justices Consuelo Ynares Santiago, Renato Corona, Dante Tinga, Minita Chico-Nazario, Presbitero Velasco Jr., Teresita Leonardo-De Castro, and Arturo Brion.

Chief Justice Reynato Puno dissented and was joined by Associate Justices Antonio Carpio, Ma. Alicia Austria-Martinez and Conchita Carpio-Morales. Associate Justices Antonio Eduardo Nachura and Diosdado Peralta inhibited from the case.

In his dissenting opinion, Puno said VFA fell short of meeting the requirement set under the Constitution that the treaty should be recognized by both governments.

“The circumstances present in the case at bar and recent case law in the United States’ policy on treaty enforcement further expose the anomalous asymmetry in the legal treatment of the VFA by the United States as opposed to the Republic of the Philippines. This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it,” the chief justice explained.

Puno and Carpio agreed that Smith should be transferred to the New Bilibid Prisons (NBP) in Muntinlupa pending final resolution of his appeal from conviction for the crime of rape.

The case at the SC centered on two main issues: “Whether the right to custody of accused Daniel Smith during the pendency of his appeal belongs to the Philippine government or the United States authorities and whether there was a contempt of court committed in the transfer of accused Daniel Smith from the custody of the court to that of the United States authorities pending appeal.”

“The issue here at the Supreme Court is interpretation of VFA. The main case involving the rape issue is with the Court of Appeals,” explained Marquez in an interview.

Former senator Jovito Salonga and other petitioners will appeal the SC ruling upholding the constitutionality of the Philippine-US VFA despite losing the case with a 9-4 vote.

“We will appeal,” UP Professor Harry Roque, counsel for Salonga said in a phone interview. “We are hoping we could convince the other justices to join the four dissenters.”

In a statement, Roque said the SC stand on the VFA is “a bittersweet decision for the Filipino people.” He said the High Court’s refusal to declare the VFA unconstitutional “undermined its own independence.”

The case was triggered by the transfer of Smith to the custody of the US Embassy. Salonga and leftist groups questioned the agreement executed between Kenney and Romulo waiving the right of custody of Smith to US authorities pending appeal of his case.

Meanwhile, Malacañang gave assurance yesterday it would immediately start what it sees as difficult negotiations with the US government on the transfer of Smith to Philippine jurisdiction even as officials expressed optimism that the custody issue would not strain relations between the two countries.

Executive Secretary Eduardo Ermita pointed out that the bigger issue was the SC decision upholding the constitutionality of the Visiting Forces Agreement (VFA), which was welcome to both the Philippine and US governments.

“We will go by the SC ruling,” Ermita told a news briefing, even as he admitted the US government cannot just be compelled to abide by the High Court’s decision. “We will bring that (custody issue) across to the US authorities and I’m sure the US authorities with their lawyers will have their own position.”

When asked about the US position that Smith can only be transferred to Philippine jurisdiction in case his conviction by the lower court on rape is upheld, he said that was the reason why the SC ruled that negotiations must be done by both sides on the matter and the convict remain in the custody of the US Embassy in the meantime.

Meanwhile, the US Embassy in Manila said yesterday the SC decision ordering the transfer of Smith to custody of Philippine authorities would be referred to their legal experts because of important legal issues and the RP-US VFA.

“The US Embassy has taken note of the Supreme Court decision regarding the Visiting Forces Agreement. As it concerns important legal issues, we have referred it to United States Government legal experts in Washington,” the embassy said in a statement.

The Department of Foreign Affairs (DFA) was mum on the High Court’s ruling and order for Secretary Romulo to negotiate the transfer of Smith from the US Embassy to the custody of Philippine authorities.

A statement of Romulo for the media in reaction to the SC decision was still being crafted as of press time.

Ambassador Kenney, who was in Zamboanga yesterday, welcomed the SC ruling, saying the VFA is the legal framework which supports the US military presence in working with the Armed Forces of the Philippines (AFP) in training and providing technical assistance in the war against terrorism.

“The high court decision is terrific news. I’m pleased that an agreement that both our countries have (for the past years) stays in place,” Kenney said, citing that coordinated work between the two forces would continue unhampered.

But Kenney declined to comment on the part of the SC decision concerning Smith’s transfer.

Meanwhile, the Department of the Interior and Local Government said it will just wait for the specific directive of the Supreme Court on where to detain Smith.

 With Cecille Suerte Felipe, Pia Lee-Brago, Roel Pareño - By Edu Punay (Philstar News Service, www.philstar.com)

abs-cbnNEWS.com | 03/17/2009 11:52 AM

 “Nicole,” the victim in the Subic rape case, has left for the United States, for good.
This is according to a statement by her lawyer Evalyn G. Ursua, who received the news from Nicole’s mother.

Ursua added that Nicole’s mother gave her a letter Monday afternoon at about 5:30, stating Nicole’s “‘notice of termination of [my] services as [her] counsel in the criminal case” against Daniel Smith and all ‘other cases arising from or related’ to it, ‘which are pending before the Court of Appeals and the Supreme Court.’”

Atty. Ursua also mentioned that she asked Nicole’s mother for an explanation for the termination of her counsel services.

“Nicole and her family are tired of the case and they do not want anymore to be bothered by it because ‘there is no justice in the Philippines,’” Ursua’s statement read.

The letter also said thank you to Ursua “for all the time and effort that you have devoted in the prosecution of the case.”

Ursua noted in her statement that there is no way for her to confirm with Nicole the details of the letter. She then presumed that the letter correctly states Nicole’s decision.

“I will therefore respect it,” she added.

In addition, Ursua said the letter noted that copies of it were or will be furnished to the Office of the Solicitor General and Smith's lawyer, Atty. Jose Justiniano.

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Gabriela reacts

“There is going suspicion that maybe Nicole was pressured and we understand her situation right now,” said Rep. Liza Maza of women’s party list Gabriela in a telephone interview on ANC’s Dateline Philippines.

“We were surprised by the turn of events,” added Maza.

She also said that the termination of Ursua’s services is immaterial to the case because there is already a conviction against Smith.

“It’s really kinda strange,” remarked Maza, pertaining to the fact that Nicole’s mother sent the letter to Justiniano before sending it to Ursua.

Meanwhile, Maza said the demoralization of Nicole and her family, which led them to give up on the case, was caused by two things.

“The framework of this whole case is unequal, the Visiting Forces Agreement itself,” she said, adding that “Malacañang is not really serious in really pushing for our sovereignty and even the sovereign decision of our Philippine courts on this issue.”

She also noted that “This issue is beyond Nicole. This is an issue of a woman who has been violated there was a crime committed. And the perpetrator of such crime should be punished.”

Maza added, “Nasa burden talaga ng Malacañang, ng ating pong gobyerno para i- assert itong ating posisyon kaugnay ng kaso ni Nicole at kaugnay ng Visiting Forces Agreement.”
‘Nicole’ recants
By Norman Bordadora
Philippine Daily Inquirer
First Posted 21:30:00 03/17/2009

Filed Under: Subic rape case
MANILA, Philippines    The Filipino woman who accused an American Marine of raping her late in 2005 and testified about her ordeal in court has recanted.

The sworn statement issued by "Nicole" on March 12 comes more than two years after the Makati Regional Trial Court convicted Lance Corporal Daniel Smith of raping her.

Nicole said she expected her motives to be questioned but maintained she was bothered by her conscience

I expect many sectors to question my motives in executing this statement more than three years after the incident. However I can’t help but entertain doubts on whether the sequence of events in Subic last November of 2005 really occurred the way the court found them to have happened, Nicole said in her affidavit.

My conscience continues to bother me realizing that I may have in fact been so friendly and intimate with Daniel Smith at the Neptune Club that he was led to believe that I was amenable to having sex or that we simply just got carried away, she said.

I would rather risk public outrage than do nothing to help the court in ensuring that justice is served, she added.

Nicole said she practically grew up interacting with American servicemen in Zamboanga City who treated me and my family very well.

She also questioned her decorum when she met Smith at the Neptune Club at the Subic Freeport, saying she was so drunk she may have lost her inhibitions and did more than just dance with the Marine.

Nicole also raised doubts that Smith raped her inside a van at the Subic Bay Freeport Zone and suggested that she may have welcomed the Marine’s sexual advances.

I told the court that Daniel Smith kissed my lips and neck and held my breast inside the van. Recalling my testimony, I ask myself how I could have remembered this if witnesses told the court that I passed out and looked unconscious, Nicole said.

How could I have resisted his advances given this condition? Daniel Smith and I were alone on the third row of the van which had limited space and I do not recall anyone inside the van who held my hand or any part of my body, she added.

Nicole said all she could remember was the very loud music and shouting inside the van.

With the events at the Neptune Club in mind, I keep on asking myself, if Daniel Smith wanted to rape me why would he carry me out of the Neptune Club using the main entrance in full view of the security guard and the other customers?

Why would Daniel Smith and his companions bring me to the seawall of Alaba pier and casually leave this area that was well-lighted and with many people roaming around? If they believed that I was raped, would they have not dumped me instead in a dimly lit area to avoid detection?

Nicole said with the amount of alcohol she had consumed that night and only a slice of pizza to eat, she may have lost her inhibitions and enjoyed Smith’s company.

I had no opportunity to deny in court that I kissed Daniel Smith but, with the amount of alcoholic mixed drinks I took, my low tolerance level for alcohol and with a slice of pizza all night, it dawned upon me that I may have possibly lost my inhibitions, became so intimate with Daniel Smith and did more that just [dance and talk] with him like everyone else on the dance floor, Nicole said.

Looking back, I would not have agreed to talk with Daniel Smith and dance with him no less that three times if I did not enjoy his company or was at least attracted to him since I met him for the very first time on the dance floor of Neptune Club, she added.
From BBC
 
Philippine 'rape' victim recants

US marines arrive at a Manila court

The case against the marines stirred up anti-US feeling

A Philippine woman who secured a rape conviction against a US marine more than two years ago has now suggested the sex was consensual.

A statement from the woman, known as Nicole, says she is tormented by guilt.

Lance Corporal Daniel Smith was sentenced to 40 years in jail. He is currently being detained at the US embassy in Manila, pending an appeal.

The case had stirred anti-American feelings in the Philippines, and strained ties between the two nations.

"My conscience continues to bother me," Nicole wrote, "realizing that I may have in fact been so friendly and intimate with Daniel Smith at the Neptune Club, that he was led to believe that I was amenable to having sex or that we simply just got carried away."

Nicole had previously testified that Smith took advantage of her drunkenness to rape her in a parked van.

The incident was alleged to have occurred after the pair, who had just met, drank and danced together in Subic Bay, the site of a former US army base.

Smith insisted throughout the trial that he was innocent and the sexual encounter had been consensual.

Following his December 2006 conviction, he was transferred to the US embassy in Manila, in a move that was fiercely contested by Nicole's supporters.

They were incensed to see the marine escape the harsh realities of Philippine jails.

The embassy insisted that under the Visiting Forces Agreement, which regulates the presence of American counter-terrorism troops in the Philippines, the US was entitled to retain custody of Smith until the end of the legal process.

The case strained relations between the two countries, and led to vocal calls in the Philippines for the abrogation of the VFA.

Nicole's new version of events has shattered certainties in the case - although some Philippine left-wing activists have suggested both governments may have leaned on Nicole to change her story in order to keep the VFA in existence.

Philippine Justice Secretary Raul Gonzales expressed annoyance at the latest turn of events.

He said Nicole's allegations had affected the country's foreign policy and suggested she could be charged with perjury.

But Nicole's whereabouts are unclear.

Her lawyer said she had been informed by her client's mother that Nicole had now emigrated to the United States and no longer wished to talk.

Thursday, March 19, 2009

‘Nicole’ criminally liable

But DOJ not going to file case in court

By William B. Depasupil, Reporter

Justice Secretary Raul Gonzalez on Wednesday said Suzette Nicolas or “Nicole” could be held criminally liable for recanting her story that virtually exonerated her convicted rapist, US Marine Lance Corporal Daniel Smith.

Gonzalez admitted that Nicole’s case has created a lot of problems to the extent that it has even affected the country’s foreign policy.

“I am dismayed. It appears to me that we have been taken for a ride in this case. So [many] problems have been created by this. The foreign policy has been affected,” the Justice chief said.

With her recantation, Gonzalez pointed out, Nicole could be charged with perjury for “offering false testimony” in a criminal case.

He stressed, though, that the Justice department is not interested in filing the case, which, he said, is better left to the discretion of the former lawyer for Nicole, Evalyn Ursua.

“I am not thinking of pursuing that because to me this is a closed case already. After all, what can we get?” Gonzalez added.

Nicole recanted her allegations against Smith in an affidavit that she signed on March 12. Smith’s legal counsel submitted the affidavit to the Court of Appeals Twelfth Division, where the US serviceman has a pending petition seeking to reverse his conviction.

Smith, a participant to the 2005 Balikatan (Filipino for shoulder-to-shoulder) war games, was found guilty in 2006 by Makati Regional Trial Court Judge Benjamin Pozon for raping Nicole on November 1, 2005 inside the Subic Bay Freeport and was sentenced to 40 years in prison or reclusion perpetua.

Mere scrap of paper

Gonzalez pointed out that Nicole’s recantation was a “mere scrap of paper” as it could not be accepted anymore as additional evidence by the appellate court as the case had been terminated.

He explained that since the case is under appeal, the Makati court had forwarded all the records of the case to the Court of Appeals, and “this affidavit cannot form part of record because it wasn’t part of the trial.”

According to Gonzalez, the affidavit could only be admitted if the court was convinced that it is a newly discovered evidence, which would result in a new trial.

He further explained that under the rules of court, there is no such thing as the court taking judicial knowledge or judicial cognizance of events that have taken place.

If the justices would opt to reopen the case for that purpose, Gonzalez said, Nicole would be required to come back to the country.

“She [Nicole] could be liable for offering false testimony as evidence and if her lawyers are aware of that, even her lawyers could be held liable,” he added.

Mistrial not likely

Meanwhile, the prosecutor who handled Nicole’s case, Olongapo City Prosecutor Emily delos Santos, is also convinced that the affidavit is not a ground for the court to declare a “mistrial” that could lead to the reopening of the rape case.

She also pointed out that she does not see the affidavit as a recantation but rather as an affirmation of the prosecution theory then that led to Smith’s conviction.

“I was not surprised by it. It was consistent with the theory of the prosecution. It was based on evidence that because she [Nicole] drank too much, she was incapable of giving consent,” delos Santos explained.

She described the affidavit as a “hindsight” that Nicole thought of only three years after the lower court handed down the guilty verdict to Smith.

“With due respect to the Court of Appeals, there is no ground for a new trial because this affidavit is only the indisight of Nicole,” delos Santos said.

The Court of Appeals, she added, would decide based on evidence presented three years ago, “not on what Nicole is feeling right now.”

But the decision whether to reverse or affirm the guilty verdict, delos Santos said, entirely rests on how the appellate court would appreciate the evidence presented to the lower court.

She warned, though, that if there would be a reversal, it would open the floodgates to the reopening of other cases.

Palace plays innocent

Malacañang denied having a hand in the recantation of Nicole.

“We don’t want to dictate her what to do because when we say ‘You apologize’ somebody will accuse us of human-rights violation. It’s up to her,” Executive Secretary Eduardo Ermita said also on Wednesday.

For now, he added, it is “premature to say whether there could be an automatic dismissal of the case” because it is under appeal.

He also brushed off allegations that the government made Nicole a “sacrificial lamb” for the Visiting Forces Agreement (VFA) between the US and the Philippines. The agreement supposedly would be reviewed, a move that had been precipitated by the fight over the custody of Smith.

Mixed reactions

Manila Auxiliary Bishop Broderick Pabillo defended Nicole from those who supposedly began criticizing her after she recanted, accepted P100,000 from the US Marine and flew to the United States reportedly “for good.”

Nicole is “not against America. He [Smith] is only one soldier. This is not a battle between two countries,” he said, adding that he does not think Nicole’s departure would weaken the case.

One critic was Sen. Pia Cayetano, who said that the retraction was “the biggest letdown” in the celebrated case. She, however, appealed to the public to refrain from blaming Nicole even if she decided to accept money and migrate to the US in exchange for clearing Smith.

The issue, Cayetano said, is not Nicole, but the government’s allegedly conscious failure to assert its justice system and sovereignty.

“President Gloria Arroyo and Justice Secretary Raul Gonzalez must be the happiest people in the world right now, aside from Daniel Smith. They can rejoice all they want, but Filipinos know the truth,” the senator added, apparently referring to speculations that the government had pressured Nicole into recanting her statements against Smith.

The speculations have it that US President Barack Obama’s call to President Arroyo over the weekend triggered Nicole’s retraction. Obama reportedly reminded his Philippine counterpart that Manila was bound to adhere to provisions of the Visiting Forces Agreement despite the Smith case.

VFA review

Rebecca Thompson, the spokesman for the US Embassy in Manila, said that Nicole’s new affidavit would have no bearing on the review of the agreement, particularly the custody issue.

The Department of Foreign Affairs agreed but declined to comment on whether Nicole’s retraction would figure in the revisit of the agreement.

The US government should not use the recantation to spirit Smith out of the country, Sen. Francis Escudero said.

Nicole’s affidavit is not a “boarding pass to freedom,” he added.

Thompson assured also on Wednesday that Smith remains detained at the embassy.

Escudero said that despite Nicole’s retraction, the agreement should still be renegotiated because of its provision allowing the US to hold Smith even after he was convicted by a local court in December 2006.

Like Cayetano, he said that he was not blaming Nicole for deciding to settle out of court, except that her affidavit will be treated as a mere scrap of paper unless she affirms it in open court.

Uncanny timing

Still, Mayor Jejomar Binay of Makati City, also the president of the United Opposition (UNO), urged Manila and Washington to explain the circumstances surrounding Nicole’s departure for the United States.

He said that he found it “uncanny” that Nicole’s recantation would surface a few days after the phone conversation between President Arroyo and Obama.

“Under the Arroyo administration, nothing happens by accident, especially on such a sensitive and high profile issue as the VFA,” Obama added.

The mother of Nicole, has denied insinuations that the Philippine and US governments pressured her daughter to fly to the United States and to issue a new sworn statement. During a radio interview, she said that it was the decision of the family to let Nicole go.

Binay said that the Nicolas family deserves sympathy but “the issue is not her recantation but the circumstances surrounding her departure, the role of the US government and the complicity or negligence of the Arroyo government.”

He asked the US Embassy to make a categorical statement that Nicole had been allowed to enter the United States, saying that “it is not helping clear the air by refusing” to make a statement.

“Questions will remain on whether she was allowed to enter the US on humanitarian grounds or as part of a settlement that includes her recantation,” Binay added.

“Nicole’s case stirred anti-US protests in the Philippines. Normally, persons involved in high-profile cases find it difficult to enter the US,” he noted.

Binay commented on the P100,000 received by Nicole from Smith, saying that offering a settlement is a “presumption of guilt.”
-- Angelo S. Samonte, Bernice Camille V. Bauzon, Llanesca T. Panti And Cris G. Odronia
MANILA, Philippines – The United States embassy in Manila said on Thursday it did not know the whereabouts of "Nicole," who American serviceman Daniel Smith was convicted of raping, and whose case tested the Philippine-US Visiting Forces Agreement.

Rebecca Thompson, embassy spokesperson, said in an interview that they were aware of media reports suggesting Nicole had already left for the US and recanted her previous testimony in the court, casting doubt on whether she was actually raped by Smith.

“We don’t have further information suggesting her whereabouts,” Thompson said.

She also refused to say anything about Nicole’s visa application.

“Everyday, people come here for visa application[s] and, for privacy reason[s], we don’t divulge details about them or their applications,” she said.

Philippine women's groups say there's a plot to free U.S. Marine convicted of rape....


 

Philippine riot police push back protesters near the U.S. Embassy in Manila. The protesters, angered by the handling of a case in which a U.S. Marine was convicted of raping a Filipino woman, called for canceling the Visiting Forces Agreement between the Philippines and the United States.

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By Paul Watson
March 19, 2009
Reporting from Manila -- Women's rights activists accused U.S. and Philippine authorities Wednesday of conspiring to free a U.S. Marine convicted of rape after his alleged victim recanted her assault claims and reportedly moved to the United States.

Marine Lance Cpl. Daniel Smith was charged with rape in November 2005 after a 22-year-old Filipina accused him of sexually assaulting her in a van after they drank and danced in the Neptune Club at Subic Bay, a former U.S. naval base.

Smith, of St. Louis, was found guilty in December 2006 after his alleged victim wept on the witness stand as she described being sexually assaulted by Smith as three other Marines cheered him on.

But Suzette Nicolas changed her story in an affidavit that she swore before a Manila notary public this month. Four days later, the woman's mother informed her lawyer, Evalyn Ursua, that Nicolas had flown to the U.S. to live.

"My conscience continues to bother me realizing that I may have in fact been so friendly and intimate with Daniel Smith at the Neptune Club that he was led to believe that I was amenable to having sex or that we simply just got carried away," Nicolas said in her March 12 affidavit.

The high-profile case has rallied opposition here to the 1999 Visiting Forces Agreement, which stipulates when U.S. military or Philippine authorities have jurisdiction over American troops who get into trouble with the law here.

Many Filipinos say the agreement undermines Philippine sovereignty. Protesters frequently demonstrate against the accord outside the U.S. Embassy.

Smith is in detention on the embassy compound, where he was moved after the Philippine government agreed to transfer him from a Manila jail days after he was convicted.

The Philippine Supreme Court ruled last month that the Marine should be returned to the custody of Philippine authorities while he awaits an appeal. The embassy says legal experts in Washington are studying the ruling.

But Liza Maza, a member of the Philippine House of Representatives, said the delay, the timing of Nicolas' statement recanting her accusations and her departure for the U.S. suggest a backroom deal was worked out to free Smith.

"Our government and the U.S. government have colluded in order to get this recantation [from Nicolas] to get Smith free and also continue with an unequal Visiting Forces Agreement," Maza said.

Embassy spokeswoman Rebecca Thompson declined to comment on the charge. She also refused to disclose details of the visa granted to Nicolas, who was identified in the local media by the pseudonym "Nicole" until her affidavit was made public Tuesday.

Maza, whose Gabriela Women's Party represents numerous rights groups, said activists wanted to know whether there were grounds for obstruction of justice charges "and who are the participants in this whole evil design."

Suspicions of U.S. meddling are especially vexing, Maza said, because President Obama promised the world things would be different.

"With all the brouhaha and all the pronouncements for change, President Obama seems to be of the same color as Bush in terms of his foreign policy and in terms of intervening in the internal affairs of supposedly independent countries," she said.

Nicolas' affidavit was also condemned by the judge who presided over Smith's trial, Benjamin Pozon. "It looks like a mockery of our justice system," he told local television.

But Justice Secretary Raul Gonzalez cast doubt Wednesday on the idea that Nicolas' affidavit alone would exonerate Smith.

"I don't think her retraction will result in reversal of the [lower court] conviction of Smith for rape," Gonzalez said in a statement. "It is not considered newly discovered evidence. I do not think it will have a big impact on the case."

In her affidavit, Nicolas said that before meeting Smith at the bar, she had only a slice of pizza to eat and then drank a great deal of alcohol, including vodka and Sprite, a Singapore Sling, a B-52, Long Island iced tea and a Bullfrog.

Nicolas left the Neptune with Smith, who carried her to the van, she said. When she was dropped off later near the Alaba Pier, Nicolas' jeans were down around her ankles and she had bruises on her arms, legs and genitals consistent with rape, the court was told during the Marine's trial.

Smith has insisted that he had consensual sex with Nicolas and that she helped him put on a condom. The court acquitted three other Marines, Staff Sgt. Chad Carpentier, Lance Cpl. Keith Silkwood and Lance Cpl. Dominic Duplantis, along with their Filipino driver. The men had been charged with complicity in the rape.

In her affidavit, Nicolas said she was confused and "scared not only of losing my American boyfriend but the chance of living in the United States" when police took her statement the night of the alleged rape.

"I told the court that Daniel Smith kissed my lips and neck and held my breast inside the van," Nicolas said in her affidavit. "I ask myself now how could I have remembered this if witnesses told the court that I passed out and looked unconscious when I was brought to the van by Daniel Smith.

"How could I have resisted his advances given this condition? Daniel Smith and I were alone on the third row of the van which had limited space and I do not recall anyone inside the van who held my hand or any part of my body. What I can recall is that there was very loud music and shouting inside the van."

That account contrasts starkly with what she described during Smith's trial as a brutal sexual assault.

"His comrades cheered him on and they seemed so happy watching a live rape show," she told the court in 2006. "And then they took me out of the van like a pig."

paul.watson@latimes.com
Monday, March 23, 2009

EXCLUSIVE

 Draft ruling acquits Smith

CA justice wrote ponencia before retiring in 2008

By Jomar Canlas, Reporter

The Court of Appeals could have overturned the conviction of American soldier Daniel Smith long before his rape victim “Nicole” came out with an affidavit recanting her previous story, virtually clearing Smith of her charge of sexual abuse.

The Manila Times obtained the 55-page draft ruling written by appellate court Justice Agustin Dizon who handled the Subic rape case. In it, he wrote that Smith was innocent “beyond reasonable doubt.”

Dizon, who retired on June 27, 2008, said Smith should have been acquitted based on the technical and substantive aspects of the case.

The document has been attached to the records of the case on Dizon’s request. The case has been raffled off and is now pending before Court of Appeals Justice Monina Arevalo-Zenarosa.

The Dizon paper was not released, though, as the Court of Appeals’ division members did not sign it because of time constraints.

A source who is familiar with the development—but had asked anonymity—told The Times that Court of Appeals Justice Celia Librea-Leagogo, the senior member of the 17th Division, did not sign the Dizon draft ruling or ponencia as she needed at least two months to review the case. Dizon was the division’s junior justice at that time.

The document reached the chambers of Leagogo in May last year, a month before Dizon retired.

The source described Leagogo as “meticulous” about the Dizon ponencia and fearful of going against public opinion and putting the Court of Appeals in a bad light.

But even before Dizon retired, Leagogo had inhibited herself from handling the case, as she happened to be a friend of one of Smith’s lawyers. Leagogo was replaced by Justice Apolinario Bruselas.

The chairman of the appellate court’s 17th Division at that time was Justice Regalado Maambong, who neither expressed concurrence or dissent on the ruling. Maambong took a leave of absence and left for Israel. He was replaced by Justice Vicente Veloso, who also recused himself from deciding on the Dizon paper as he, too, was a friend of one of Smith’s lawyers.

Causes of delay

These developments delayed the signing of the draft decision and forced the 17th Divison to look for other members. Meanwhile, time had run out for Dizon, as he was reaching retirement age.

The case was raffled anew, with Associate Justice Juan Enriquez coming in as the new member of the court’s Special Division. Enriquez, however, took the tack the others had taken for the same reason that one of Smith’s counsels was his friend. He was replaced by Justice Hakim Abdulwahid.

With the subsequent raffle of the case, the new ponente replacing Dizon was Zenarosa, with Justices Mariano del Castillo and Apo­linario Bruselas as members.

The US Marine’s appeal has been pending before the Court of Appeals for more than two years now, stalled by the inhibition and retirement of justices assigned to handle the case.
Smith was convicted of rape and sentenced to serve 40 years in the Philippines on December 4, 2006.

Technical acquittal

In the Dizon ponencia, the justice pointed out that Smith could not be found guilty beyond reasonable doubt for rape as the information on the charge sheet filed by the lawyers of Nicole showing “force and intimidation” appeared questionable.

Force and intimidation are elements in the commission of the crime of rape under Article 335 of the Revised Penal Code.

“Rape is committed by having carnal knowledge of a woman under of the following circumstances: [1] by using force and intimidation; [2] when the woman is deprived of reason or otherwise unconscious.”

The prosecution filed the information on the basis of force and intimidation, but Justice Dizon noticed that the evidence presented was “intoxication,” which is interpreted as “deprived of reason or otherwise unconscious.”

Dizon reasoned that “intoxication” as defined under Article 15 of the Revised Penal Code is an “alternative circumstance,” which means that it could either be aggravating or mitigating to the crime.

But the justice wrote that “intoxication” could not be equated with “unconsciousness” or vice-versa.

This line of reason gave rise to doubt whether or not Nicole was “unconscious” or “intoxicated.” It will be recalled that Nicole admitted getting drunk with Smith.

As a rule under the Article III, Section 14, paragraph 2 of the 1987 Constitution on the Bill of Rights, the accused has to be informed of the charges filed against him.

One cannot be charged with one offense on this particular element— force and intimidation—of the crime while presenting another element, intoxication.

“In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf,” the law says.

Substantive acquittal

Doubt was inculcated in the mind of Dizon as to the factual circumstances of the crime of rape between Nicole and Smith.

Dizon was not convinced that Nicole was raped at all.

He said that the use of force applied to Nicole was not apparent because she herself went to the vehicle voluntarily.

Smith alone allegedly committed the rape, without the participation of the other US soldiers inside the van.
The justice wrote that either way, the issues of “force and intimidation” and “unconsciousness” via “intoxication” could not be appreciated because such amount of evidence could convince him to convict Smith.

Dizon wrote that Nicole was not deprived of reason after all, since she was aware of the details surrounding the crime because at that exact moment she was drunk but not totally unconscious.

Hence, he decided to draft a ponencia, on the front page of which ruled that Smith should be acquitted and that justice must be served to all regardless of sex, race or creed.

Zenarosa ponencia

The Times source said that Zenarosa vowed to issue her ruling before her retirement in August.

Several appellate court justices who talked to The Manila Times on condition of anonymity said that most of them support the acquittal of Smith on the basis of the Dizon’s draft.

The justices said they have seen several lapses in the conviction made by Makati Regional Trial Court Judge Benjamin Pozon.

Their statements on the Dizon paper were confided to The Times by the Court of Appeals justices even before the March 12, 2009 affidavit of desistance manifested by Nicole to the appellate court.
 

On the night of March 17, 2009, Suzette Nicolas or Nicole had recanted her statement with a sworn affidavit and questioned that how could it be rape with all the facts presented to the trial court in 2006. She also then fired her lawyer on the case, Activist Evalyn Ursua.

Suzette said that her conscience has been bothering her and that she wants to move on with her life and go to United States. [on a fiancee visa to marry her US boyfriend, who is in the service in Okinawa]

Senator Ana Consuelo "Jamby" Madrigal, a Suzette supporter on this high profile and sensationalized case, believes that the reason why Suzette decided to terminate her counsel was because “perhaps there was a deal too good to refuse”.

On the contrary, Suzette's mother, Susan Nicolas, said that nobody pressured Suzette to recant on her alleged rape by Smith 3 years ago. 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 claimed that Suzette left the Philippines in mid-March for the US (for good) to join her fiance of 2 years who is in the US Military. According to Ninoy Aquino International Airport and Philippine Bureau of Immigration, Suzette flew to Japan first. [boyfriend serves in Okinawa]

Susan appealed to the public to allow Suzette to live a normal life. [Like Smith does?]

It takes 6 months to one year to process a US Fiance Visa and the couple must prove to US Immigration and Citizenship Services that they have been in a relationship for a while. All paperwork must be complete and legal and must be submitted to an Immigration Office in the US. All US government agencies and private companies, which include Embassies, Immigration Offices and Consulates, are prohibited from giving any information to a third party, which include visas and immigration status, of anybody unless the Power of Attorney from the person involved is presented per United States Privacy Act Law of 1974. [that is, officially nobody in the govt will say whether she got a visa or where she is now]

According to Justice Secretary Raul Gonzalez, all he knew was that Suzette wanted assistance in securing a visa for Italy where her brother reportedly stays. He also said that Suzette could now face a perjury case for lying under oath.

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.[27]

Secretary Gonzalez said that Suzette's recantation statement won't hold water because her affidavit is just a scrap of paper. [unaccompanied by the appropriate bribe]. He also added that Suzette's affidavit may not be admitted as new evidence because it should have been introduced during the 2006 trial. [until the bribe is received]

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 has been in Court of Appeals for more than 2 years wherein Smith has 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. [the bribe was not big enough]

Zambales Congresswoman Mitos Magsaysay, whose district covers where the incident occured, said that Suzette did not originally complain of rape when she talked to her on November 01, 2005. Congresswoman Magsaysay also said that the new affidavit that Suzette submitted is consistent on what Suzette, the Starex van driver Timoteo Soriano 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.

The militant groups Gabriela (with Lisa Maza), 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.), The Public Interest Law, Quezon Congressman Lorenzo Tanada III, Senators Ana Consuelo "Jamby" Madrigal, Loren Legarda and Francis Pangilinan, Quezon City Congresswoman Nanette Castelo-Daza, Dr. Quintin Doromal, Lawyers Evalyn Ursua, Romulo Capulong and Harry Roque, Clara Padilla, and Former Senators Jovito Salonga and Wigberto Tanada are among Suzette's supporters in filing the rape lawsuit against Smith and are also against the VFA in the Philippines. They are also known to be anti-Americans.

Suzette brought with her the 100,000 Pesos payment (equivalent to US $2000) for moral and compensatory damages that Judge Pozon ordered Smith to pay her in 2006. Suzette wanted Smith to be punished of death penalty at the time instead of the 40 year imprisonment that Judge Pozon gave Smith.

According to Judge Pozon, the rape conviction of Smith was beyond reasonable doubt because Suzette had alcohol in her body and was therefore, deprived of reason to consent to sex in spite of all the evidence and the facts that Smith's lawyer presented to the trial court in 2006, including the fact that Suzette helped Smith to put the condom on him. A Blood Alcohol Content Test or BAC was not conducted during the investigation and trial in 2005 and 2006.