CA ACQUITS SMITH, THREE FEMALE MAGISTRATES RULE IT WAS A 'ROMANTIC EPISODE'

CA ACQUITS US MARINE DANIEL SMITH IN RAPE CASE, THREE FEMALE MAGISTRATES RULE IT WAS A 'ROMANTIC EPISODE'
By Benjamin B. Pulta

THREE female magistrates of the Court of Appeals (CA) yesterday ruled in favor of acquitting United States Marine L/Cpl. Daniel Smith who was convicted by a Makati regional trial court of raping a Filipina while he was on furlough.
In a 71-page decision, the CA's Special Eleventh Division through Monina Arevalo-Zenarosa ruled that "on reasonable ground,the accused Lance Corporal Daniel Smith is hereby acquitted of the crime of rape as alleged in the information,"
"He is ordered released immediately unless held for other lawful cause," the CA division ruled after two other magistrates, Remedios S. Fernando and Myrna Dimaranan-Vidal concurred with the ruling.
"What we see was the unfolding of a spontaneous, unplanned romantic episode with both parties carried away by their passions and stirred up the urgency of the moment caused probably by alcoholic drinks they took, only to be rudely interrupted when the van suddenly stopped to pick up some passengers,"the CA said.
The appellate court took pains to claim that it had not been influenced by a supposed sworn statement executed by the victim which was reportedly prepared by Smith's counsel. The matter is presently being investigated by the Supreme Court.
"Ultimately, it must be pointed out that in resolving the case, we disregard the alleged recantation of Nicole submitted on March 8,2009.Nor did we open the sealed draft decision penned by retired Justice Agustin S. Dizon which was attached to the records," the CA said.
The court insisted that its "careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused,"
"(T)he moment of parting came and the marines had to rush to the ship. In that situation,reality dawned on Nicole--what her audacity and reckless abandon,flirting with Smith and leading him on,brought upon her," the court said adding that "her claim that she was unconscious rings hollow,delusive and untrue."
Earlier this week, Smith's lawyers were ordered by the Supreme Court (SC) to answer a petition alleging that they played a part in preparing the supposed "recantation" made by Smith's accuser, 'Nicole'.
In a four-page resolution the high court required " the concerned lawyers of Sycip Salazar Hernandez and Gatmaitan to comment within ten days from notice on the alleged violation ". Smith is being represented by the legal team from the said firm led by Jose Justiniano.
The said ruling also ordered Court of Appeals (CA) President Justice Conrado Vasquez Jr. " to conduct an investigation on the alleged release of a draft ruling acquitting Smith.
A petiiton has been filed last month before the SC by individuals and groups asking the high court to investigate Daniel Smith's defense lawyers involvement in the Court of Appeals draft ruling acquitting the US Marine.
The suit also urges the high court to stop the appellate court from proceeding with the case and for the SC to conduct an investigation of what it said was "the questionable circumstances of the execution of the supposed sworn statement of Nicole dated 12 March 2009 and "to discipline, if warranted, the lawyers, including Sycip Salazar Hernandez & Gatmaitan" The latter they said may have violated ethical rules in its execution and notarization.
Petitioners said that while the investigation is being conducted,the SC should stop the CA from resolving Smith’s appeal until all the issues.
Individual petitioners in the suit are former Leticia Ramos Shahani is a former senator and one of the principal authors of Republic Act No. 8353, also known as the Anti-Rape Law of 1997, Mary John Mananzan, Teresita Ang See, Nemenzo and Cristina as well as lawyers Evalyn G. Ursua and Harry Roque.
Likewise parties in the suit are the Gabriela (General Assembly Binding Women For Reforms, Integrity, Equality, Leadership and Action),its party-list group Gabriela Women's Party (“GWP”) , the Bagong Alyansang Makabayan ( Bayan), the Ecumenical Women's Forum and Task Force Subic Rape.
The parties are questioning what it claims are improper steps taken by government lawyers as well as the defense panel in the suit. "The Office of the Solicitor General has not taken any step to ensure that the interests of the people are protected. For example, it has not made any move to ascertain whether the People’s principal witness, Nicole, indeed freely, voluntarily and intelligently executed her alleged sworn statement of March 12, 2009. " the petitioner said.
"It has not made any move either to ascertain whether unethical or illegal methods were employed by Daniel Smith’s lawyers in the execution of Nicole’s supposed sworn statement in their office. In the light of the Office of the Solicitor General’s insistence that Smith should be detained in the U.S. Embassy until the final resolution of his appeal, despite the Supreme Court ruling of February 11, 2009, the office evidently suffers from a serious conflict of interest."
The petitioner said while the supposed sworn statement of Nicole has been called a “recant” by the media, "in truth, the same is not a recant."
The parties also said there is no inconsistency between the new statement and the testimonies of Nicole and other witnesses and that the narrative in the sworn statement affirms "Nicole’s severe intoxication before and during the rape, which deprived her of the capacity to give free, voluntary and intelligent consent to any sexual contact, as corroborated by toxicology experts and other prosecution witnesses during the trial".\ The sworn statement is not inconsistent with the testimonies of witnesses who saw the U.S. marines dump Nicole on the side of the road " like a pig, with her pants down and its zipper at the back, and with a condom sticking out of her panties. " Those witnesses testified that Nicole was incoherent and unable to even remember her name.
" From the sequence and timing of events, it is not difficult to conclude that everything has been orchestrated so that in the end Smith will get acquitted and the public will accept the acquittal. With the acquittal, the issue of Smith’s custody by the U.S. Embassy, which has become legally untenable and a foreign relations nightmare to both the Philippine and U.S. governments, will disappear, as ably predicted by Secretary Remonde. "the parties said.###