News peg: Jessica Lucilla “Gigi” Gonzales-Reyes, former chief of staff of Sen. Juan Ponce Enrile who was linked to the P10-billion pork barrel scam, left the country two weeks ago.A witness in the pork barrel scam alleged that he delivered a duffel-bag-full of money to her house in La Vista and laid out the money on a table in her sala in front of her.
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The disadvantage of being out of the country once a complaint is filed against you is that you would not be able to file your counter-affidavit. A counter-affidavit has to be sworn to before the investigating fiscal or prosecutor. The affiants need to be present before the investigating fiscal or prosecutor when they file their counter-affidavits plus the rules technically or theoretically allow “clarificatory” questions to be propounded (i say theoretically because in real life, you just need to present yourself to the fiscal and swear to your counter-affidavit).
If the counter-affidavit is not sworn to in this manner, it would be considered as hearsay and would not be admitted. It would just be a piece of paper.
The disadvantage of not being able to file your counter-affidavit is that, under the rules, the facts alleged in the complaint against you would be deemed not controverted. Not controverted means notdenied, not contested, not disputed, not belied…. Therefore, they would be admitted. Kahit na anu sabihin dun: admitted! kawawa ka naman.
Well, you can ask your lawyer to file sumthin’. Like another person alleging facts in your favour or… your lawyer raising jurisdictional issues. However, if you are accused of certain acts, you’ll need to deny them personally or else they would be deemed… the word is: Uncontroverted. Admitted.
The advantage, on the other hand, of being away when a complaint is filed against you is that, should a warrant of arrest be issued with your name on it, you would not be apprehended. You would not be detained. You would not be arraigned. Trial would not proceed as to you until you are arraigned.
The disadvantage of that is, you would be a fugitive.
Those are your options. Weigh your options carefully.
People who choose to be fugitives wait for a better day. They wait for a change in administration. In this country, changes in administration result in the counter-reversal of fortune of fugitives, senators, and maybe chiefs of staff.
And so it is. (this is not the Gigi Gonzales that I know, who was smart, articulate, progressive and kind, but that was a long time ago.)
Of course, in practice, whenever you file a motion to suspend (or motion for continuance or motion for time), and if you’re new, your senior partner will lecture you: don’t presume the court will grant it, until granted, you have to show up . Lecture lecture.
In practice however, in ordinary cases (that is, in ordinary cases, not in so-callled “high profile” cases) you usually give opposing counsel paňero/ paňero/ the courtesy of an advanced copy of your motion for continuance and give a friendly phone call – in real life and in ordinary cases, lawyers and opposing counsels become friends in the course of the trial. Then you inform the clerk of court in advance that you and opposing counsel have spoken of other trial dates etc. etc. , the clerk of court will confirm with opposing counsel, etc. etc. it makes the workings of the court more efficient when you prepare for contingencies before the hearing, the clerk of court can accommodate more cases in the calendar, and it makes the job of the judge less stressful …
Trade secrets. that’s in ordinary cases; in so-called “high profile” cases, sometimes, the lawyers get on each others nerves; for some reason, lawyers get too stressed out when millions and millions of people are watching their every move and thousands of people want to talk to them and they need to talk, study, read, write, prep, meet up, thousands of times endlessly .
People vs. Janet Lim- Napoles for serious illegal detention. News peg: DZMM reported that the accused filed an urgent “Motion for a Bill of Particulars” in this case at 4pm today.
The following are the pertinent provisions on the Revised Rules of Criminal Procedure on this:
“Rule 116 Arraignment and Plea. Section 9. Bill of particulars. — The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and to prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired. (10a)
“Section 10. Production or inspection of material evidence in possession of prosecution. — Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies. (11a)
“Section 11. Suspension of arraignment. — Upon motion by the proper party, the arraignment shall be suspended in the following cases:
“ (a)The accused appears to be suffering from an unsound mental condition which effective renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose;
“ (b)There exists a prejudicial question; and
“(c)A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. (12a)”
A motion for a bill of particulars is filed by an accused who thinks that the Information (formal charge) against him/her is too general. In other words, the accused wants to find out from the prosecution: What overt acts in detail are you charging me with and what evidence do you have against me? This is based on the right of the accused to be informed of the charges against him/her, or to be informed of the particularities of the overt acts he/she is accused to have committed.
The arraignment is on Sept. 9; if the Court grants the urgent “Motion for a Bill of Particulars” before Sept. 9, the prosecution must file the bill of particulars asked for on or before Sept. 9. If the Court does not act promptly on the motion or, if the Court grants and the prosecution complies, but the accused is not satisfied with the bill of particulars , the accused on Sept. 9 may either move for a suspension of the arraignment (reset or defer) on grounds of a prejudicial question under Sec. 11 (abovequoted).
If a motion for suspension is denied right there and then, and the accused is compelled to enter a plea, the accused may refuse — the court would then order that a plea of “not guilty” be entered for the accused.
Motions, motions. Act on the motions before Sept. 9, okay?
I haven’t seen the Information (formal charge) for serious illegal detention filed against Janet Lim-Napoles, and therefore would have to refrain from giving an opinion on how detailed or how general it is.
