(UPDATED). The Lawyer (and the Subic rape case.)

 

 

[UPDATED: 15 minutes ago, ABS-CBN’s Mariton Pacheco reported that “Nicole” filed what was supposed to be an “affidavit of desistance” in which she stated that she now doubted that she had been raped, that she might have been so drunk that she lost her inhibitions and became intimate with the accused, that if the accused had intended to rape her, she would not have been brought out through the front door, and that she doubted now that she passed out because she could recall the kissing etc. in the van etc. The affidavit sounds like a pleading for the accused, hell, it sounds like the Memorandum of the accused (a Memorandum is a pleading filed by both parties at the end of the case as ordered or if ordered)

        The affidavit was submitted by the lawyer of the accused to the Court of Appeals. The bearer of the affidavit (lawyer of the accused) gives you an idea of the “genesis” of the affidavit, or how it came about.  

       Implication: As everybody knows, an affidavit if not  affirmed before the court in person by the affiant is in the status of hearsay. In other words, an affidavit by itself without the affiant being presented in court is not considered as any kind of “documentary evidence”, it is supposed to be a statement of a narration of events; therefore, just a summary of a testimony; and without the testimony, is nothing more but a piece of paper without the affiant presented in person.

     Further, the CA on appeal cannot be a trier of facts, the affidavit therefore cannot be admitted, unless the accused succeeds in filing a Motion for New Trial and getting an order granting it and then succeed in bringing the affiant back to affirm her affidavit, etc.  etc.But considering that Atty. Ging Ursua’s services had been terminated by “Nicole” (see discussion below, written earlier), and she did not retain any lawyer, who would bring up these arguments on the status of the affidavit as evidence?

       Who? The DOJ? The DOJ by pronouncements of the DOJ secretary has shown it wasn’t too keen on this case even if  its job is to prosecute crimes. Who would bring up these arguments?

        And that was why the lawyer, Atty. Ging Ursua, was “fired” by the client. Apparently, there was only one lawyer for “The People” in this litigation  and it was Atty. Ging Ursua. (and a lot of support from the public and organizations going the way of the prosecution.)

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   The termination by “Nicole” (the private complainant in the Subic rape case, People vs. Daniel Smith) of the services of Atty. Ging Ursua without retaining another counsel has certain implications. Legally, the client has the right to do that, but there are implications.

       Atty. Ursua would file a “Notice of Withdrawal” attaching the letter of “Nicole”.

Since the lawyer was not given the name or address of another lawyer who would handle the case, there would be no forwarding address stated except maybe a reference that notices could be served on the client, etc..

The DOJ prosecutor, representing “The People” , of course, is still the “nominal” counsel-of-record and would still continue receiving notices and orders from the appellate court. But with the pronouncements of DOJ Secretary Gonzales on this case, i’m not sure how enthusiastic a prosecutor with a case load of 200 cases would be (sometimes, they just file a two-page pleading).

As for copies for the “private prosecutor”, this might be served by the clerk of court on the last known address of the “private complainant”. I don’t know who lives there now.

Considering the words of the mother, “hindi naman kami makakakamit ng hustisya” and “wala na kaming pakialam sa kaso sa Court of Appeals” (“we will not get justice” and “we don’t care anymore what happens in the Court of Appeals”), you’d probably know what would happen to those notices (and pleadings from the accused) that would be served on the last known address.

Of course, criminal cases cannot be compromised. Legally and theoretically, it does not weaken the case, the appellate court is still duty-bound to review the case based on the evidence. Any legal issues arising from a review of the evidence however might not be adequately addressed by those representing the prosecution. (I don’t know what legal issues arising from the evidence in the criminal case could still be raised, i’m not inclined to give examples here; in any case, defense lawyers could raise a host.)

It’s not like Atty. Ursua was not doing her job, she was doing it really well as shown by the conviction of the accused; terminating her services is meant to stop her from speaking on behalf of the client and to somehow weaken “appellate prosecution”. (Do you get what’s going on? Do i have to spell it out? The “private complainant” never got any support from our own government, and you cannot blame anyone or condemn anyone here.) Atty. Ursua may have been disengaged by the client but she can continue to speak on her own as an exercise of her right to free speech.

Where is this case now? It is at the Court of Appeals – which has just come from a scandal characterized by a Supreme Court committee as “malfeasance and misfeasance” .

The superpowers and their local satraps in Malacañang know only too well the weakness of our institutions and the frailty of men and women as “private complainants”. It’s a new doctrine in law practice, or maybe an unspoken doctrine: “When weak on the law and the facts, pound on the corruptibility of  institutions and the powerlessness of private complainants.”

(again, i try not to pass judgment on “private complainants” since i’m not in their shoes. This just highlights how the unequal relations between the U.S and the Philippines have been continuously propped up by Palace errand boys and girls in the last hundred years. Do we wait for another rape case, another girl/another woman? How many rape cases are required for us to learn this lesson? When do we say “enough”)

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(in the interest of full disclosure: our office PILC handled the first VFA case.)