Countdown to Wrongful Conviction Day: Friday, October 2, 2105; 8 days. For information: http://www.aidwyc.org/wcd-2015/
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;
1) THE PROSECUTION
FAILED TO PROVE
THE QUALIFYING
CIRCU(M)STANCE OF
TREACHERY.
30. There are two elements that must be established
before treachery may be appreciated. These are: “(1) the
employment of means, methods or manner of execution that
would insure the offender’s safety from any retaliatory act
on the part of the offended party, who has, thus, no
opportunity for self-defense or retaliation; and (2) deliberate
or conscious choice of such means, methods or manner of
execution.”1 In other words, there must be evidence both as
to the manner of the execution of the crime and the clear
intent of the accused to employ such means.
31. The Prosecution claims that treachery is present
because Pemberton “attack[ed], assault[ed], box[ed], beat
up, strangle[d], and choke[d] from behind [Laude].” 2
However, it cannot be denied that the Prosecution did not
present any evidence to prove such claim. Indeed, a perusal
of the Prosecution’s Formal Offer of Evidence would show
that none of its documentary and object evidence --
including the Medico-Legal Report No. A14-163 RCLO33 --
was presented for the purpose of proving such claim. Also,
none of the witnesses presented by the Prosecution --
including the police officers and SOCO members who
investigated the death of Laude, as well as the medico-legal
officer who conducted the autopsy on the body of Laude --
were presented for the purpose of proving said claim. In
view of such omission alone, it is clear that the Prosecution
failed to present any evidence (documentary, object, or
testimonial) to prove that Pemberton attacked and choked
Laude from behind.
Further, although Dr. Dave surmised that the wounds
of Laude could indicate that his assailant “might [have]
been behind [him]”4 “at some point,”5 he conceded on crossexamination
that it is actually possible that some of the
wounds of Laude “have been inflicted while Jeffrey was
facing the assailant.”6 In other words, it could be deduced
from Dr. Dave’s own testimony that from Laude’s wounds
alone, it is impossible to conclude that the assailant attacked
and choked Laude from behind. This was confirmed by Dr.
Raquel Del Rosario-Fortun who, upon being asked if “any of
[the] injures [sustained by Laude could] be sufficient to form
a belief as to whether the attacker of Laude was behind
him,”7 answered that: “[It is] [v]ery difficult to answer, just
based on the injuries alone it would be hard to make a
conclusion as to how they were sustained.”8
Notably, none of the numerous police officers, SOCO
members, and NCIS agents presented by the Prosecution
claimed that Laude was attacked suddenly and swiftly, or
that he was attacked and choked from behind. Not one of
them alleged that Laude was not able to offer any
resistance. They did not even claim that it was Laude who
sustained the first blow. Indeed, the Prosecution did not
present any witness who could shed light on how the alleged
attack made against Laude transpired. In fact, PCI Edmar dela Torre, the team leader of the
SOCO team that processed the crime scene, admitted on
cross-examination that the SOCO did not “reach[] the
conclusion that Laude was attacked.”9 Much less did it reach
a “conclusion as to the manner [in which] Laude was
attacked.”10 More importantly, PCI dela Torre also admitted
that the SOCO “found no evidence whatsoever which
could indicate that [Laude]”11 was: (a) “attack[ed]
suddenly and swiftly”12; (b) “attacked from behind”13;
or (c) “not able to offer any resistance at all.”14
Similarly, another member of the SOCO team that
processed the crime scene, PO2 Jarlowe Introlizo (who even
initially said that he did not consider the acts that he
performed at the crime scene as an investigation15) similarly
admitted that he “do[es] not know”: (a) “how [Laude]
was attacked”16; (b) “if it was done in a swift manner or
not”17; (c) “if [Laude] was attacked from behind or not”; (d)
“if [Laude] was able to offer any defense or resistance when
he was attacked”18; and (e) “if it was [Laude] who made the
first attack.”19
Also, while NCIS Agent Michael D. McCarver stated in
his Report dated 12 October 2014 20 that “Rose said
S/Pemberton also told him that he choked her out from
behind with his arms,” LCpl. Jairn Rose did not allege this
matter in his Statement dated 12 October 2014.21 On crossexamination,
Rose explained this discrepancy by admitting
that “it is possible” that he did not “include such statementin [his Statement]” because “[he was] not really sure if this
(sic) matters [were] actually relayed to [him] by
[Pemberton].”22
Significantly, while the Prosecution failed to offer any
evidence to support its claim that Pemberton “attack[ed] …
and choke[d] [Laude] from behind,” 23 Pemberton’s
narration regarding the fight that ensued between him and
Laude undeniably disproves such baseless claim.
It would be recalled that Pemberton positively testified
that it was Laude who attacked him first by slapping him
hard across the face.24 Since Pemberton saw Laude “winding
up to slap [him] again,” Pemberton protected himself by
hitting Laude.25 Pemberton and Laude “started fighting after
that.” 26 Although “everything happened so fast,” 27
Pemberton could recall “that [they] were standing… face to
face, exchanging hits and punches.”28 At some point, in his
attempt to subdue Laude,29 and because Laude was trying to
“tackle” and “push” 30 Pemberton, “[Pemberton] got [his]
arm around [Laude] and [they] fell back on the bed.”31
Pemberton “just held [Laude] there until [he] realized that
he wasn’t moving.”32
It cannot be overemphasized that the Prosecution did
not, as it cannot, rebut Pemberton’s narration. Four hours of
cross-examination only reinforced Pemberton’s credibility
and the veracity of his statements. More importantly,
Pemberton’s explanation is supported by the evidence on record. Rose admitted on cross-examination that Pemberton
“[told] [him] that he was slapped by [Laude] … on the
face.” 33 In addition, Dr. Raquel Del Rosario-Fortun, an
expert in the field of forensic pathology, explained that
“[b]ecause of the location [of] the injuries [sustained by
Pemberton],” the same could be considered as “defense type
injuries.” 34 More importantly, Dr. Fortun confirmed that
there is nothing in Pemberton’s explanation as to what
happened between him and Laude that is inconsistent with
the evidence on record, thus:
“Atty. Tolosa Again, this is my question, you
fully comprehend Pemberton’s
explanation as to what happened
between him and Laude inside the
room until he brought Laude’s body
inside the restroom, is that correct
ma’am?
Witness: Yes sir.
Q. Now, my question is, that story
that he gave, that explanation that
he gave, do you find it to be
inconsistent with any evidence
that you have examined in this
case, the pictures, the lay out, the
injuries sustained as reflected in
the medico-legal reports? That’s
my question.
A. No inconsistencies, sir.”35
Thus, since it was Laude who started the physicalconfrontation between him and Pemberton, it is clear that
Pemberton did not suddenly and swiftly attack Laude. For
the same reason, it also cannot be said that Laude was not
able to offer any resistance to Pemberton’s attack against
him. In fact, the two exchanged blows and kicks, with
Pemberton sustaining defensive wounds. Further, at no point
during the fight was Pemberton behind Laude. From the
time that the physical altercation started (when Laude
suddenly slapped Pemberton), to the time when the two
traded blows, until Pemberton ended up having his arm
around Laude’s neck in order to subdue him, the two were
standing “face to face.”
It would also be relevant to recall Barbi’s testimony
that Pemberton did not know that they were men and they
were deceiving him. Jeffrey and Barbi were not clueless as
to the possible complications that may arise from their
deception. At one point, Jeffrey asked Barbi to go away as
he was afraid that Pemberton would discover their true
genders.36 They expected that Pemberton would get angry
for such deception. 37 From Barbi’s testimony, we can
conclude without a doubt that Jeffrey was expecting a
violent reaction from Pemberton. Hence, Jeffrey was alert to
any possible attack.
All told, it is evident that the Prosecution failed to show
that Pemberton employed “means, methods or manner of
execution that would insure [his] safety from any retaliatory
act on the part of [Laude], who ha[d], thus, no opportunity
for self-defense or retaliation.” On the contrary, the
evidence on record shows that Pemberton did not employ
such means against Laude. Hence, treachery cannot be
appreciated.
37. Further, even assuming arguendo that Pemberton
“attack[ed] … and choke[d] [Laude] from behind” 38 as
claimed by the Prosecution (which is vehemently denied as it
is contrary to the evidence on record), treachery still cannot
be appreciated since there is also no evidence showing the
presence of its second element, i.e., deliberate or conscious
choice of the means, methods or manner of execution.
38. In People v. Besana, Jr.,39 the Supreme Court
held:
“We believe that the appellant must be held
liable for the killing of Arsenio Besas, but that the
offense is only homicide. There is absolutely no
indication in the record that the appellant was
purposely in search of Besas, and the bare facts
proven at the trial are not inconsistent with the
inference that the meeting was casual. Much less
can the proof warrant the theory that the
appellant had a previous determination to kill
Besas, and the facts proven are likewise not
inconsistent with the conclusion that appellant
fired at his victim impulsively. Nor can we
suppose that appellant knew beforehand that the
deceased was unarmed. The fact that the
injuries of the victim were inflicted from
behind as the latter was running away does
not necessarily establish treachery where it
does not appear that appellant purposely
chose to employ such means of attack so that
there would be no risk to himself from any
defense which the offended party might
make. Upon the whole, we are not prepared
to rule that the qualifying circumstance of
treachery was present.”40
40. Applying the above-quoted case, the qualifying
circumstance of treachery may not be appreciated against
Pemberton since the Prosecution failed to show that he
“deliberate[ly] or conscious[ly] cho[s]e … the means,
methods or manner of execution.” To stress, the Prosecution
did not present any evidence that could prove this.
40 Ibid., at _; emphasis and underscoring supplied.
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
I have added a search box for content in this blog which now encompasses several thousand posts. The search box is located near the bottom of the screen just above the list of links. I am confident that this powerful search tool provided by "Blogger" will help our readers and myself get more out of the site.
The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
