Wednesday, September 23, 2015

Part three: U.S. Marine Joseph Scott Pemberton: Part three of a four part series: Moving beyond the sensational elements to an examination of the defence submissions on the forensic pathology issues which lay at the heart of the case. Part three: "Abuse of superior strength". "Thus, it cannot be denied that the Prosecution failed to prove its allegation that Laude was a transgender who “move[d], fe[lt], and th[ought] like a real woman.” Much less did it present any evidence to show the effects of being a transgender on the physical strength of a man, if any. Significantly, Pemberton positively testified that Ladue “hit [him] like a man.”

Countdown to Wrongful Conviction Day:  Friday, October 2,  2105;  9 days. For information:

PUBLISHER'S NOTE: In recent months this Blog has focused from time to time on the trial in the Phillipines of Joseph Scott Pemberton. Not  surprisingly, the sensational elements of the case have attracted great national and international attention as a result of the  sordid sexual circumstances  and the friction created between the U.S. and Phillipine governments  But when all is said and done, Pemberton is entitled to have a fair trial, in which the rule of law will prevail - and the  focus will have to be  dispassionately directed to the compelling forensic evidence provided by the defence  if a wrongful conviction is to be prevented. For this reason, I will be publishing in four posts, sections of the defence submissions dealing with reasonable doubt, cruelty, abuse of superior strength,  and treachery.  As a rule, I don't publish legal documents verbatim, but these are a very interesting, important read. (I have eliminated footnotes to make the post more reader friendly.)

Harold Levy: Publisher; The Charles Smith Blog;


42. To prove the existence of abuse of superior
strength, the following must be established: (1) the accused
is physically superior to the deceased; and (2) that the
former took advantage of such superior physical strength to
overcome the latter's resistance to consummate the

43. The first element of this circumstance is absent in
this case - there is no evidence of a notorious inequality of
forces2 between Pemberton and Jeffrey.
In its Information, the Prosecution alleged that
Pemberton “abuse[d] and [took] advantage of [his] superior
strength.” However, it did not allege any ultimate fact that
could support such conclusion of law. Nonetheless, based on
the OCP Olongapo’s Resolution dated 15 December 2014, it
could be deduced that the Prosecution is of the position that
abuse of superior strength is present in this case because:
(a) Pemberton is a United States Marine who underwent
training “which includes drill physical exercises, personal
combat, and martial arts”; (b) Pemberton is “known to be a
skilled boxer”; (c) Laude was a transgender who “move[d],
fe[lt], and th[ought] like a real woman”; (d) while
Pemberton “only sustained light scratches”, Laude was
“beaten black and blue”; and (e) Laude was “no match” to
Pemberton.3 These allegations are not supported by, and are
actually contrary to, the evidence on record.
Even though the Prosecution tried to exaggerate the
training received by Pemberton as a U.S. Marine, it was
shown during trial that the same was not as extensive and
rigorous as it wanted this Honorable Court to believe. More
importantly, it is not enough to warrant the conclusion that
Pemberton was physically superior as compared to Laude.
Indeed, as positively testified to by Pemberton, the physical
training done at boot camp only consisted of push-ups, pullups,
sit-ups, and running, which were done “once a week”
for only “2 hours.”4 As for the martial arts training, it was
just “basic … punching, kicking, striking, and self defense”
which lasted for a total of “12 hours.”5 After boot camp,
Pemberton received no other martial arts training. All of
these matters were all corroborated by the Prosecution’s
own witnesses, Pulido, et al. As for its claim that Pemberton
“was known as a “skilled boxer,” the Prosecution was not
able to present a single witness who could prove the same.
Indeed, Pemberton asserted that he never got into any
“contact sports, like boxing and judo.”6 The Prosecution did
not, as it could not, refute this.
The Prosecution likewise failed to substantiate its claim
that Laude was a transgender who “move[d], fe[lt], and
th[ought] like a real woman.” In an attempt to prove that
Laude was a transgender, the Prosecution presented Marilou
Serdoncillo Laude. However, this Honorable Court correctlyruled that “she cannot testify [for the purpose of proving
that Laude was a transgender] because she’s not an
expert.”7 As a result, Prosecutor Misael Ladaga “agreed that
an expert witness would be presented” to “prove that Jeffrey
Laude was a transgender.”8 However, the Prosecution never
presented such an expert witness. Thus, it cannot be denied
that the Prosecution failed to prove its allegation that Laude
was a transgender who “move[d], fe[lt], and th[ought] like
a real woman.” Much less did it present any evidence to
show the effects of being a transgender on the physical
strength of a man, if any. Significantly, Pemberton positively
testified that Ladue “hit [him] like a man.”9
In any case, even if the claim that Laude “move[d],
fe[lt], and th[ought] like a real woman” would be presumed
to true, it would still not help the Prosecution’s cause. The
Supreme Court has held that the mere fact that the victim is
a woman and the accused is a man does not automatically
amount to a valid finding of the existence of abuse of
superior strength.10
Similarly, the Prosecution’s claims that: (a) while
Pemberton “only sustained light scratches”, Laude was
“beaten black and blue”; and (b) Laude was “no match” to
Pemberton,11 are also not supported by (and are in fact
contrary to) the evidence on record.
The abrasions and contusions found on the body of
Jeffrey are not an indication of abuse of superior strength.
There is simply no truth to the Prosecution’s exaggerated
claim that Laude was “beaten black and blue.” Indeed, Dr.
Fortun testified that Laude’s abrasions and contusions weremerely “minor injuries” 12 and, “individually and
collectively,” 13 could not have caused Laude’s death
“because they are superficial.”14 They were merely in the
nature of slight physical injuries that would have healed in
less than nine (9) days.15 Dr. Dave even testified on crossexamination
that a woman or somebody a lot smaller and
weaker than Jeffrey could have inflicted those wounds.16
The injuries sustained by Laude and Pemberton (as
reflected in the Medico-Legal Report No. A14-163 RCLO317
and the General Physical Examination Report,18 respectively)
are also not enough to prove the presence of abuse of
superior strength. They simply do not show that Laude was
“no match” to Pemberton, as claimed by the Prosecution.
This is proven by Dr. Fortun’s testimony regarding this
“Atty. Tolosa Now, another evidence presented
by the prosecution is a Result of
Physical Examination conducted
on the body of accused Joseph
Pemberton. This is a document
denominated as DOD
sexual/Assault of forensic
examination result consisting of
14 pages prepared by Dr. Kenny
Choi, presented by the
prosecution as Exhibit LLL,
particularly on page 6, General
Physical Examination. Would you
agree that this physical
examination consist[ed] [only] of
examination of external injuries
sustained by Pemberton?
A. As documented and described,
these injuries consist of abrasions
or scratches on the body and
these are all superficial, seen on
the skin.
Q. You would agree then that any
internal injuries that could
have been sustained by
Joseph Scott Pemberton
would not have been reflected
in that report?
A. Yes sir, it is possible.
Q. So for example, Joseph Scott
Pemberton sustained a blow
in the stomach and suffered
injuries for that – internal
injuries – that would not be
reflected in this document?
A. Yes sir.
Q. Would you now agree with me
doctor that an autopsy
conducted on the cadaver of
Jeffrey Laude as compared
with [the] external
examination conducted on the
body of accused Pemberton
could not in anyway inform
this Honorable Court as to
who between the two actually
sustained more injuries
during the fight. Having in mind
your statement a while ago that
this external examination
conducted on the body of
Pemberton does not accurately
and fully disclose all of the
injuries that Pemberton may
have sustained?
A. It is difficult to compare
because the extent of the
examination is different. In an
autopsy, we don’t just do an
external exam but the next step
is actually cutting up the body
[and] looking inside.”19
Clearly, the Prosecution failed to substantiate the
allegations that it made in support of its claim that the
qualifying circumstance of abuse of superior strength is
present in this case. In fact, the established facts in this
case belie such claim.
There is no gross disparity in the height and built of
Jeffrey and Pemberton. In fact, Laude was more physically
mature as compared to Pemberton - Pemberton was only
nineteen (19) years old while Jeffrey was already twenty-six
(26).20 Also, as shown above, even though Pemberton is a
U.S. marine, he did not receive any kind of training that
would give him significant physical superiority over Laude.
He is merely a teenaged, inexperienced Marine, who had not
even seen actual combat.21 In fact, as a Marine, he was “just
the driver” of a Humvee.22 Further, from childhood until his
encounter with Laude, he had never been in any physical
fight with any one.23
Moreover, even assuming arguendo that Pemberton
was physically superior to Jeffrey, this was negated by the
established fact that while Jeffrey had no alcohol or drugs in
his blood, 24 Pemberton was heavily intoxicated. 25 This
resulted to “lack of physical coordination”, 26 “slow
reflexes” 27 , and “blurry vision” 28 on Pemberton’s part.
Significantly, Dr. Fortun confirmed that intoxication produces
“diminished neurological functions such as reflexes, mobility,
judgment, and such.” 29 Since Dr. Fortun explained that
these effects would generally be experienced by someone
who “consumed about more than three bottles of beer,”
there can be no doubt that Pemberton experienced the same
since he consumed about six bottles of Redhorse beer, 3 to
4 shots of liquor, and another 3 to 4 glasses of mixed
drinks.30 To stress, Pemberton’s intoxication was confirmed
by Prosecution’s own witnesses, Pulido, et al.

44. Clearly, the Prosecution’s claim that Pemberton
was physically stronger than Laude is unsupported, and
even contradicted, by the evidence on record.

45. The prosecution also failed to prove the second
element of abuse of superior strength. There is no evidence
that there was a conscious choice to take advantage ofsuperior strength in order to perpetrate the alleged crime.
It is not sufficient to merely argue that there is a
disparity in the strength of the parties. The evidence must
also establish that the accused “purposely sought the
advantage, or that they had the deliberate intent to
use this advantage.”31
Thus, in People v. Rabanillo,32 the
Supreme Court held that there was no abuse of superior
strength even if the accused was “bulkier and stronger” than
the victim. According to the Court, “[i]t must then be
established that not only did the assailant enjoy superior
strength over the victim, but that he took advantage thereof
in the commission of the crime.”33 Thus, even assuming
arguendo that Pemberton was stronger than Laude, there
would still be no abuse of superior strength since the
Prosecution presented no evidence to show that Pemberton
deliberately intended to use his superiority.
As discussed above, Pemberton fought with Jeffrey to
defend his life and his honor. The unlawful aggression came
from Jeffrey. The quarrel arose unexpectedly. In fact, it
was Pemberton who was surprised when Jeffrey suddenly
slapped him on the face as Pemberton “moved to the edge
of the bed.” 34 Pemberton and Jeffrey traded blows and
grappled and in the course thereof, Jeffrey fell unconscious.
No advantage of superior strength can be appreciated under
those circumstances. Indeed, as testified to by Pemberton,
“everything happened quickly” 35 ; the fight went “million
miles an hour.”36 Evidently, Pemberton’s actions during that
fight were not calculated and deliberate. Rather, he merely
acted on pure instinct.

47. Further, in Valenzuela v. People,37 the SupremeCourt noted that the evidence for the prosecution point to
the conclusion that the killing was unplanned and not
premeditated. Thus, the Court held that there was no abuse
of superior strength as the accused could not have
intentionally taken advantage of his strength in the
execution of the crime.

48. The ruling in Valenzuela applies in the present
case. Indeed, there is no proof that Pemberton had any
intention of committing any crime. Pemberton testified that
he went with Laude and Gelviro to Celzone to have sex with
them. He had no intention whatsoever to hurt any of them.
On the other hand, it was Laude and Gelviro who had the
nefarious intention of deceiving Pemberton into believing
that they are women in order to get money from him.
All told, it is clear that the qualifying circumstance of
abuse of superior strength is absent in this case.

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Harold Levy; Publisher; The Charles Smith Blog;