Tag: Alabang boys

Criminal law, Rules of Court

still on the being-reviewed drug case of the Alabang boys

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(Photo of ecstasy pills, right-clicked from www.pdea.gov.ph used here for educational and non-commercial purposes)

 

    

   At today’s congressional hearing  (I’ll just discuss in passing the criminal procedure aspect; not the bribery allegations), State Prosecutor Resado was asked how he would have ruled had the Alabang boys not executed a waiver. He said he would have ruled against them and would have filed the drug case in court.

 

      The buy-buy operation by which the Alabang boys were apprehended is a form of a warrantless arrest; valid depending on the circumstances; if the respondents were caught in flagrante delicto or in the act of committing a crime,  then valid. Any search made in relation thereto, or  in relation to the arrest, is a form of a search incident to a lawful arrest. If the arrest were valid, the search incident thereto is valid. State Prosecutor Resado discussed something about the failure to conduct an inventory on site and the chain of custody. I’ll leave the other lawyers to discuss that, not wanting to do free research and opinion for any party. But the ones stated here are what the Rules of Court provide. If in flagrante delicto, valid warrantless arrest. If valid arrest, any search incident to the arrest is valid. The search must be only of the immediate vicinity; there are cases that say that that search must be only within literally the arm’s length of the suspects because the purpose is to prevent the suspect from reaching for any weapon that he/she may use against the law enforcers. I’ll leave  other lawyers to discuss the research on that.

 

       After such warrantless arrest (in flagrante delicto) an inquest, or a kind of “speedy investigation” (my words),   is conducted. It must be  conducted right away. Because the suspects have now been warrantlessly arrested and in detention;  they have to be charged within 12 or 18 or 36 hours depending on the case. If charges are not filed within 12 or 18 or 36 hours depending on the case, then the State has to release them. There’s a constitutional right not to be detained without charges, and the charges have to be filed within those periods. Otherwise, those detaining the suspects would be charged with arbitrary detention, a criminal offense.

 

       Based on “statistical experience” (my words), aecstasymost inquest proceedings are resolved in favor of the State; I’m not saying that’s a rule or it is a practice, I’m just saying that’s based on statistics.

 

(Photo of ecstasy pills, right-clicked from www.pdea.gov.ph used here for educational and non-commercial purposes)

 

 

       The suspects, especially where the anticipated charge is a capital offense, usually ask that a full-blown preliminary investigation be conducted instead of just an inquest. Why? If it’s anticipated to be a capital offense, the suspects are detained and will be detained after the charges are filed and until the trial is over, which is a very long time and may take years and years. Years and years in detention during trial: weigh that against a month or two  of detention during preliminary investigation, at which time you can present more evidence and play with your chances. Which do you choose?

 

       So, the suspects usually take their chances with a full-blown preliminary investigation. They have to execute a waiver of their right not to be detained beyond 12 or 18 or 36 hours and the right to file a case of arbitrary detention. In exchange, they get a full-blown preliminary investigation. There’s a circular that says that a preliminary investigation must be resolved within 90 days.

 

     (that’s the post for today; i won’t give an opinion on the length of time of the detention in this case; yeah, sometimes i choose not to give an opinion.)

 

       

Criminal law, Rules of Court

(Updated discussion) Many DOJ prosecutors are professional (the Alabang boys’ case and alleged drug bribery)

      To be fair, some if not many of the DOJ prosecutors who spoke at yesterday’s press conference have been,  through the years,  strictly professional at their work and had quietly performed their duties  regardless of who sat as DOJ secretary or regardless of who sat in Malacanang;   as can be seen by their winning streak. Prosecutors like  Deputy Chief Prosecutor Dong Fadullon,aprosecutiion

 

 

 

whose soundbytes and  heartfelt remarks  were used by TV news, have been winning their kidnap-for-ransom cases in fair weather or storm, come hell or high water amid death threats and bullets from the kidnap syndicates. We worked with them in the plunder case; they were assigned there because they were the best of the lot. Their winning  and consistent track record shows that there are many DOJ prosecutors who are competent and upright.

 

           It is another matter if the prosecutor were losing his/her cases against the syndicates  or dismissing them in a row regardless of the evidence: that should be looked into. Beyond the one-shot investigation that would be done on the alleged drug bribery incident, the panel might include a review of the dismissed cases (dismissed on preliminary investigation or during trial) to see if there is a pattern.

 

         While it is the judgment call of the prosecutor on preliminary investigation whether or not there is a prima facie case, and while most of us including the  blog admin did not see the resolution,  or the evidence,  in the drug case, the general examples  of a prima facie case are:

       1) where there are two or more witnesses who have personal knowledge or first-hand knowledge of the facts of the crime and who can unmistakably identify the perpetrator;

      

         or if there were only 2) one witness, where  the lone witness has first-hand knowledge and his/her testimony is consistent, certain, logical, and without a doubt; and the suspects have no iron-clad alibi;

 

          or 3) where the respondents were caught in flagrante delicto;

 

       or 4) where the evidence were the product of a search and seizure:  the search was lawful and valid and the seizure of the evidence was valid and the evidence not inadmissible, then these can be used for probable cause, 

 

       or  5) where the pieces of physical or object evidence or the documentary evidence pointing to the liability of the respondents  are consistent, reliable, admissible, and unmistakable, then the respondents should be held bound for trial.

 

       However, pattern is circumstantial evidence; you’d need other pieces of evidence on the bribery allegation.

 

       On the other hand, on the other side, while the allegations on the supposed 50-million-peso bribe  would rise and fall on the basis of testimonial evidence, the draft dismissal order that was passed to the DOJ secretary through the DOJ Undersecretary’s office is some kind of a “smoking gun” evidence of the use of,  what one would call “connections” , to put it mildly, by respondents to get their way within the DOJ; plus the phone calls.  It is an incident that even the DOJ secretary himself had attested to and have personal knowledge of, having received the draft order. In regard to that incident, what else do you need? The DOJ secretary himself saw it, he is the witness, what else do you need? There should however be a separate investigation of whether or not there is a pattern of dismissal of  certain kinds of cases, and whether the dismissals were justified (as stated before, dismissal or charging is a judgment call, but there would be what one could consider general principles or guidelines established in jurisprudence; also, pattern is circumstantial but it sets off an alarm bell).

 

 

 

 

 

 

 

Rules of Court

The Practice: The lawyer of the Alabang boys takes the fall and keeps the highest fidelity to the attorney-client relationship

dojprosecutors

   photo rightclicked from the DOJ websited used here for educational and non-commercial purposes.             

            Pañero Atty. Felisberto Verano is taking the fall for the entire scenario of an attempt to get a release order of his clients  signed, he had conversations with the DOJ secretary in December and had coursed the order-for-signature through the office of  his brod, DOJ Undersecretary Blancaflor,  but to the end he had kept  silent and vague and will keep silent  and vague about the rest of it; everything else  and all other communication being  perhaps covered by the privileged nature (or confidential nature) of the attorney-client relationship (the exception to this rule is in regard to the commission of future crimes: privilege can be waived) and all communication with other lawyers as public officials and government lawyers under the general cloak of confidentiality of “attorney-work product” (geez, i’m actually pulling that out), which includes communication between and among co-counsel and lawyers (except in regard to the commission of future crimes; privilege can be waived.)

       Did i actually just say that? Yes i did. Lawyers will carry the contents of certain conversations to their  grave, those born and arising from the attorney-client relationship, which includes not just conversations with the client  but with other lawyers; and when you look at that, it is in keeping with the highest fidelity to their client’s cause.

       There were many conversations and communication that took place before  the release order landed on the DOJ secretary’s hands, documents don’t walk by themselves.  As everybody knows, before any sheaf of paper lands on your boss’s desk, it goes through his staff or at the very least his executive secretary. Before his staff/ executive secretary reads and entertains it, it must be brought there by authorized persons. In this case, it was brought there by the staff of Usec Blancaflor. As everybody knows, before your staff  (the usec’s staff) brings any sheaf of papers to your boss’s desk , they will clear it with you (the usec). And as everybody knows, you don’t put any sheaf of papers that’s marked “through your (the usec’s) office”,  and therefore  in your name on your boss’s desk without having read it (of course! It’s your boss’s desk!) or at the very least without knowing the contents. If you’re out of town, you usually have it emailed (so easy, three seconds) or read to you over the phone because it’s in your name,  it’s coursed through your office. Nobody issues a blanket order to their secretary, “bring everything on my desk to the boss’s desk”; “or “Every document on my desk that’s for the boss, goes there”. Nobody does that. You read it first or have it read to you. 

       As the Supreme Court has held in many cases, intent is determined not  from what a person says as explanation after the fact; we do not determine it by trying to read the mind of the person; rather, intent is determined from the overt acts of the person.

     Here, the release order was marked, “through the undersecretary”, the staff was asked to bring it to the desk of the DOJ secretary, it was brought there; there was even a scribbled note on the Manila envelope: no other conclusion can be had there but that, the undersecretary himself wanted the DOJ secretary to sign the release order. Of course! Your boss’s name is there for his signature and you authorize your staff to put the release order there, you authorized the procurement of your boss’s signature, you authorized the procurement  of  the signing for  the release of the Alabang boys.

      The writing of drafts is part of law practice. In certain jurisdictions in the U.S., when a lawyer files, say, a Motion to Dismiss, he/ she is allowed to attach to the motion, a proposed order; and the same goes to the Opposition of opposing counsel, he/she is allowed to attach a proposed order.

         Writing of drafts (or ghostwriting) by lawyers, by itself, without more, is not necessarily unethical; in fact, in certain cases when the lawyer himself does not know how the draft will be used, (some lawyers tell their clients not to tell them how the draft will be used, to shield themselves), the lawyer manages to shield himself/herself from whatever it is that he/she wants to shield himself/herself. Naive, but it can somehow protect the lawyer.

       In this case however pañero did not shield himself because his clients needed his connections, and, as most or all lawyers in his position do, he used all his connections  for his client’s cause.

       And so therefore, in a twisted turn of my head and in my imperfect world, Atty. Verano’s taking the fall to keep and hold sacred the privileged nature of any and all communication arising from the attorney-client relationship might, perhaps in the planet Saturn, be the highest form of fidelity to the clients’ cause, therefore in keeping with the fiduciary nature of such relationship as required by the attorney-client relationship.

     On my planet earth, the media spin to pin down pañero is a coverup for the big fishes.

        When you talk to a lawyer and it is in regard to furthering the client’s cause, you can be sure the lawyer will hold the sacredness of that conversation forever.