People vs. Daniel Smith – marichulambino.com

Written by Inday Varona-Espina avfa1

Quote “It was, in the parlance of negotiators, a lose-lose situation.

Quote “Nicole, the woman raped by American serviceman Daniel Smith, the woman whose face the Inquirer bared cruelly on its front pages today, knew what awaited her.

Quote “And she was right. The insults, the slurs, the indignation rained as heavy as they did when PR hacks hired for the defense of Smith (and the government he serves) tried to justify a crime by painting Nicole as a woman of loose morals.

Quote “That Nicole practically damns herself the same way now does not excuse the stone throwing.

Quote “A woman of loose morals can be raped. Indeed, a woman seen by society as one with loose morals is most vulnerable to rape. A society that fumes at a woman’s attempt to live by her own rules will turn its eyes away and close its ears when men decide to impose the most humiliating punishment they can on this singular, defiant woman.

Quote “There’s a line in the Green Mile. To paraphrase: people who think themselves enlightened can perpetrate the most horrific deeds. By commission they do this; likewise, by omission.

Quote “Like many friends, I, too, would like to see a lopsided, onerous treaty provided rescinded. A country may open its doors to troops of a military ally if it helps build up its own defense capabilities; what makes the VFA unjust are the provisions clearly skewed towards the bigger power. Until the VFA treats erring American troops like erring Filipino troops, it remains unacceptable. (One might point out that too many erring Filipino soldiers have walked away scot-free but we can’t have everything and just a slight evening out of the field is enough for me.)

Quote “But yearning for a noble goal “ abolition of an onerous treaty” does not mean it is right for us to drag Nicole through the mud once more. There is no more self-serving, selfish comment than to wail we’ve been had because Nicole issued an affidavit virtually clearing Smith.

Quote “So she crumbled. So she grovelled before might and the power of the American dream. So what? A close reading of the affidavit shows she doesn’t say the rape NEVER happened. She just spouts what the defense wants her to say.

Quote “Many raped women have crumbled in the face of much, much less , say, the tears of an apologetic husband or boyfriend, or the pleas of a family tired of braving the sneers and leers, or just the mounting bills of a legal battle; or maybe just the pleas of one man’s mother, and/or the promise of marriage to make an “honest” woman of her – with all the subtext of she-was-asking-for-it.

Quote “We in the media and people’s organizations know of tortured folk recanting on earlier testimony. It doesn’t make them allies of evil men; it simply means there were factors heavy enough to crush determination and courage.

Quote “Was it naive of Nicole to expect aid from the Philippine government? Maybe. But many Filipinos do expect government or government officials to help them. Why are there long lines of supplicants at the gates of mayors and congressmen and governors?

Quote “Besides, it’s not just the government. People’s orgs and NGO’s even the media are there to succor the afflicted. But our attention spans are also as short as the public’s. We are not evil; we just have other, “more important “ things to attend to.

Quote “How many times have we in media done a round of mea culpa when discussing human rights? We admit we cannot always keep the lights shining on one particular case, and that often starts the slide to defeat. That does not make us in the media bad; we know the many reasons for this situation. If we can accept this, why can we not accept the loneliness and bewilderment of the violated, their impatience and their hopelessness?

Quote “Likewise, I have been around these circles of aid-givers enough to knowthat there is some residual middle-class desire to expect people we help to be docile and grateful, when in truth the task of working for justice does not guarantee good manners and right conduct among those we seek to aid.

Quote “Oh yes, there are many do-gooders who can barely mask their pinched noses as they go about giving aid, and there are those whose faces turn red and mouths turn down when they are met with less than obsequious thanks in their tours of duty or because the people they help just can’t be bothered by the higher isms of the day. That’s not to denigrate aid givers as evil; just to make them out as truly human, the same way the people they serve, Nicole included, are just as human.

Quote “The truth is, Nicole has walked a long, long way in this ordeal; longer than most women who have suffered rape.

Quote “Just a little over a week ago, I had to double check some documents from the Bacolod police because they initially seemed exaggeratedly negative. Of 36 cases of acts of lasciviousness report last year, only six were filed with the fiscal. Of 943 cases of violence against women, only 13 were filed in court. Of 26 rape cases, only six were filed. In the case minors, the ratio was nine of 34 rape cases ending up in court.

Quote “Nicole, at least, braved cross-examination and the harsh glare of the media spotlight, including the baring of her real identity name.

Quote “She mustered the strength for this because many of us supported her , whether because rape alone was enough to stir us to outrage or becauseshe was a vehicle to reach a higher goal.

Quote “And now she has crumbled. Why are we so irate? How many friends do we know who voluntarily joined this or that cause but dropped out after sometime? Do we sneer and call them traitors? Don’ t we even share meals with those who now serve the government, no matter if the thought of this government makes us puke?

Quote “How many on Facebook were once firm believers in this or that cause? Nobody pressured us to join those causes, right? Did we face a mob when we decided to leave?

Quote “Well, Nicole never volunteered for the cause. She had to be raped to join it. She never asked to be poster girl for nationalists; she was made one by virtue of rape.

Quote “There are a million and one reasons for despair and hopelessness. A noble cause cannot always hold one above the waters. Nor will a lynching make our cause more right.

Quote “Nicole is not the enemy. Let’s not treat her like one.” Closed-quote.

XXXXXXXX

(i got this article from the group email of Prof. Judy Taguiwalo)

(Photo by Larry.Burrows. LIFE Magazines. “Marines of 9th Expeditionary Brigade Coming Ashore at Red Beach 2”. Right-clicked from www.allposters.com, used here for non- commercial purposes, under the terms of free service by blog-use of image provided by said site.) — (Photo by Larry.Burrows. LIFE Magazines. “Marines of 9th Expeditionary Brigade Coming Ashore at Red Beach 2”. Right-clicked from http://www.allposters.com, used here for non- commercial purposes, under the terms of free service by blog-use of image provided by said site.)

[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.)

XXXXXXXX

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”)

XXXX

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