Countdown to Wrongful Conviction Day: Friday, October 2, 2105; 11 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 - given 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 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;
"C) THE PROSECUTION FAILED
TO PROVE BEYOND
REASONABLE DOUBT THAT
PEMBERTON KILLED LAUDE
TO THE EXCLUSION OF
OTHER PERSONS. ON THE
CONTRARY, EVIDENCE ON
RECORD SHOW THAT THERE
WAS ANOTHER PERSON
WHO ENTERED ROOM 1 OF
CELZONE LODGE AND
KILLED LAUDE AFTER
PEMBERTON LEFT AROUND
1130PM OF 11 OCTOBER
2014
1. Pemberton testified that when he left Laude in Room 1
around 11:30 pm of 11 October 2014, Laude was still alive. His
chest was “still rising and falling”1 and “[he] could see that
[Laude] was still breathing.”2
2. The Prosecution was unable to refute Pemberton’s
statements. In fact, the Prosecution own witnesses corroborate
Pemberton’s testimony.
3. Gallamos confirmed that when he saw Laude inside the
toilet of room 1, it appeared to him that he merely fainted.3
Gallamos also told Gelviro, who was allegedly inside room 5 at
the upper level of Celzone Lodge (instead of buying condoms, as
he told Pemberton), that Laude fainted.4 Gallamos never told the
police that Laude was dead.5 Gallamos only told the Police that
“may hinimatay na tao.”6 He reported the incident to the police
only because “[he] wanted the police to help [him] remove
Jeffrey Laude from that restroom.”7
4. Since Gallamos informed Gelviro that Laude was merely
unconscious,8 Gelviro did not find any reason to panic and he
took his time by taking a shower, brushing his teeth, and putting
on his clothes before proceeding to room 1.9
5. The Red Cross volunteers declared Laude dead around
12:08 AM of 12 October 2014. The Death Certificate signed by
Dr. Reynaldo Dave, Jr. stated that Laude died on 12 October
2014 or at least 30 minutes after Pemberton left.10
6. This Honorable Court will appreciate that there is no
evidence that when Pemberton left Laude, Laude was already
dead. Indeed, Dr. Fortun, possibly the only board certified
forensic pathologist in the country testified that it is possible that
Laude was still alive when Pemberton left him.11 When confronted
by Pemberton’s account of what transpired inside room 1, Dr.
Fortun confirmed that there is nothing in Pemberton’s explanation
that is inconsistent with the evidence on record.12 Certainly, if
there is a medical possibility that Laude was alive when
Pemberton left him, there exists a reasonable doubt as to
whether Pemberton caused his death.
7. In People of the Philippines vs. Roldan Morales, y
Midarasa, the Supreme Court held that:13
“The requirement of proof beyond a reasonable doubt
has this vital role in our criminal procedure for cogent
reasons. The accused during a criminal prosecution has
at stake interest of immense importance, both because of
the possibility that he may lose his liberty upon
conviction and because of the certainty that he would be
stigmatized by the conviction. Accordingly, a society
that values the good name and freedom of every
individual should not condemn a man for
commission of a crime when there is reasonable
doubt about his guilt. Due process commands that no
man shall lose his liberty unless the Government has
borne the burden of convincing the fact finder of his guilt.
To this end, the reasonable-doubt standard is
indispensable, for it impresses on the trier of fact the
necessity of reaching certitude of the facts in issue.
Moreover, use of the reasonable-doubt standard is
indispensable to command the respect and confidence of
the community in applications of criminal law. It is critical
that the moral force of criminal law not be diluted by a
standard of proof that leaves people in doubt whether
innocent men are being condemned. It is also important
in our free society that every individual going about his
ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense without
convincing a proper fact finder of his guilt with utmost
certainty.
Lest there remain any doubt about the constitutional
stature of the reasonable-doubt standard, we explicitly
hold that the Due Process Clause protects the
accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged."
8. In Urbano vs. Intermediate Appellate Court,14 the
Supreme Court held that death of the victim must be the direct,
natural and logical consequence of the wounds inflicted upon him
by the accused:
“The rule is that the death of the victim must be the
direct, natural and logical consequence of the wounds
inflicted upon him by the accused. And since we are
dealing with a criminal conviction, the proof that the
accused caused the victim's death must convince a
rational mind beyond reasonable doubt."
9. Here, the Prosecution failed to present proof that the
injury inflicted by Pemberton caused the death of Laude. The
Prosecution invites this Honorable Court to speculate that
Pemberton caused the death of Laude. This Honorable Court,
however, with due respect, cannot convict Pemberton for any
crime based on mere speculations or possibilities. The Supreme
Court in People of the Philippines vs. Heinrich S. Ritter15 ruled
that:
“The established facts do not entirely rule out the
possibility that the appellant (Ritter) could have
inserted a foreign object inside Rosario's vagina. This
object may have caused her death. It is possible
that the appellant could be the guilty person.
However, the Court cannot base an affirmance of
conviction upon mere possibilities. Suspicions
and possibilities are not evidence and therefore
should not be taken against the accused.
Well-established is the rule that every
circumstance favorable to the accused should be
duly taken into account. This rule applies even to
hardened criminals or those whose bizarre behavior
violates the mores of civilized society. The evidence
against the accused must survive the test of reason.
The strongest suspicion must not be allowed to
sway judgment. As stated in the case of People v.
Ng (142 SCRA 615 [1986]):
‘. . . [F]rom the earliest years of this
Court, it has emphasized the rule that
reasonable doubt in criminal cases must be
resolved in favor of the accused. The
requirement of proof beyond reasonable
doubt calls for moral certainty of guilt. It has
been defined as meaning such proof "to the
satisfaction of the court, keeping in mind the
presumption of innocence, as precludes every
reasonable hypothesis except that which it is
given to support. It is not sufficient for the
proof to establish a probability, even though
strong, that the fact charged is more likely to
be true than the contrary. It must establish
the truth of the fact to a reasonable and
moral certainty—a certainty that convinces
and satisfies the reason and the conscience
of those who are to act upon it.
In the instant case, since there are circumstances which
prevent our being morally certain of the guilt of the
appellant, he is, therefore, entitled to an acquittal.”
10. Here, there are strong indications that someone else
entered the room after Pemberton left and caused the death of
Laude.
11. Notably, Gallamos admitted that his attention was not
focused in room 1 after Pemberton left, thus:
“[Atty. Tolosa] So after that, when you said here
nakita kong lumabas ng nasabing
room ang dayuhan you’re
referring to the same white
foreigner that you mentioned a
while ago?
[Gallamos] Yes sir.
Q And when you said here after that
person stepped outside the room,
you said inisip ko na wala ng tao
sa nasabing kwarto, just to
confirm the time that he left you
were not sure if someone was still
inside that room?
A Yes sir.
Q Because, your attention was
not actually focus on that
room the whole time, that’s
why you’re not sure?
A Yes sir.”16
12. Moreover, Gallamos claimed that he left his area to go
to Gelviro in room 5 and thereafter, to the Police Station. There
was no one securing room 1 when he left. In its attempt to fill in
the loophole in its theory, the Prosecution offered the testimony
of Miraflor. However, Miraflor’s testimony is incredible.
12.1. First, it is suspect why Gallamos never mentioned
Miraflor in any of his statements before the Police and the
NCIS. Gallamos mentioned Miraflor when he was already in
the witness stand.
16 TSN, 23 March 2015, p. 130.
12.2. Second, if Miraflor was indeed securing room 1
when Gallamos left, the police would have found him there
and obtained his sworn statement. For someone who’s
supposedly played an important role in this incident, Miraflor
did not, and was not asked to, execute any statement.
12.3. Third, Miraflor’s proof that he reported for work in
the evening of 11 October 2014 is a fabricated document.
Exhibit “QQQQQQ” or his Daily Time Record reflects that
every single day for the month of October 2014, he went to
work at exactly 9pm and went home at exactly 9am the next
day, thus:
“[Atty. Javier] You mentioned awhile ago that on
October 11, 2014, you reported
for work at around 9:00 in the
evening, correct?
[Miraflor] Yes, sir.
Q It is in item no. 11, is that correct?
A Yes, sir.
Q And you also went out [or] logged
out at around 9pm or 9am?
A 9am.
xxx
Q So you are telling us that every
single day of your work in Celzone
Lodge…you go to work at exactly
the same time…?
A Yes, sir.
Q And you go out [or] you log out
from work at exactly 9[a]m.
A 9 am, I go out.
Q 9 am, [every] single day?
A Yes.”17
12.4. It is impossible for Miraflor to have come to work
and go home at exactly the same time, up to the last minute,
every single day. The only plausible explanation is that the
Daily Time Record is falsified, fabricated or at the very least,
contains erroneous entries.18 To be sure, this Honorable Court
should not allow itself to be misled.
12.5. In fact, Miraflor admitted that he has yet to report
for work when Laude checked-in (which is supposedly already
around 11pm), thus:
“[Atty. Javier] Did you check the bag of Laude?
[Miraflor] When he entered, sir, I was still not
there.
Q So you were not there on that
time?
A When I reported for work, Laude
was already inside the room.”19
12.6. If Miraflor or his Daily Time Record would be
believed, he should have been in Celzone Lodge when
Pemberton, Laude, and Gelviro arrived. The only plausible
explanation why he did not see Laude and presumably, even
Pemberton or Gelviro, entered the motel is he never reported
for work that night.
12.7. To allay any doubt that there was no one securing
room 1 when Gallamos supposedly went to Gelviro and the
Police Station, Prosecution’s own witnesses testified that the
lodge and room 1 were unsecured when they arrived.
12.8. PO2 Ric Quejado stated that when he arrived at
Celzone Lodge, no one was preventing people from coming or
entering the lodge.20 More specifically, PO1 Leonard
Pasamonte testified that prior to their arrival, room 1 was
unsecured, thus:
“[Atty. Tolosa] And also as first responder you
[were] also tasked to secure the
crime scene?
[PO1 Pasamonte] Yes sir.
Q Your words were you secured Room
No. 1?
A Yes sir.
Q The time that you got there and you
performed that act it was
unsecured?
A Yes sir.”21
12.9. Even Barbie admitted that she was able to access
room 1.22
12.10. All these matters taken into consideration, there is
basis in the view that there was a window of opportunity for
another person to have entered the room and killed Laude
after Pemberton left.
13. More importantly, not only was there a window of
opportunity, the records of the case show that there was indeed
an assailant other than Pemberton. Pemberton prays that this
Honorable Court consider the following:
13.1. When Pemberton left the room at 11:30 pm of 11
October 2014, Laude's legs should have been stretched out,
as a consequence of Pemberton half carrying and half
dragging Laude to the toilet to wake him up.23 However, the
policemen found Laude approximately thirty minutes later,
his one leg was already under his buttocks and the other leg
stretched out.24 This means that after Pemberton left, Laude
moved or have been moved.
13.2. When Pemberton left Laude in the toilet, Laude
was naked (as they were about to have sex earlier). The
police, however, found Laude with a blanket wrapped around
his body.25
13.3. When Pemberton left Laude in the toilet, Laude
did not and could not have anything in his hand. However,
Pemberton’s Exhibit 30 shows that Laude is clutching a
necklace or a piece of jewelry in his right hand.26 The
necklace or the piece of jewelry did not belong to
Pemberton. The Prosecution cannot argue that such is
Laude’s own necklace because as shown in Exhibit 30, Laude
was still wearing a necklace. The Prosecution may also claim
that the jewelry in Laude’s hand is his own bracelet.
However, Pemberton testified that Laude was not wearing
any bracelet in his right hand that night. More importantly,
based on the case records, the summary of Laude’s items or
belongings seized from room 1 does not include any
bracelet. There is a strong possibility that the person who
entered the room after Pemberton left owns the piece of
jewelry and Laude, in his attempt to offer some form of
resistance, was able to grab the necklace or piece of jewelry
from the assailant.
13.4. Dr. Fortun, during her testimony, stated that this
scenario is possible, thus:
“[Atty. Tolosa] Would it also be possible that
after having the injuries
sustained on the neck by
Jeffrey Laude, as shown on the
reports by Dr. Dave, would
these injuries be consistent in a
scenario wherein after
Pemberton held Laude in an
arm lock, as demonstrated, and
as Pemberton left him and put
him down[.] [F]or the second
time around if a person
strangles Jeffrey by the neck
and could have caused the
death of Laude? I’m just asking
about a pressure being applied
on the neck of Jeffrey Laude
again, after Pemberton
executed the arm lock, would
that be consistent on the
injuries on the neck of Laude?
[Dr. Fortun] It is possible. It do not know to
what extent that arm lock. The
question is, could the
subsequent pressure on the
neck could [have] cause it[.]
Yes, it is possible.”27
Xxx
Q If Jeffrey Laude loss
consciousness as a result of the
arm lock, would it be possible
that after a few moments
Laude would again regain
consciousness?
A Yes sir, possible.
Q Would it be possible that after
regaining consciousness if
someone were to attack him he
would still have been able to
offer some form of resistance?
A Yes sir, it depends on how
incapacitated, yes, he would
recover from loss of
consciousness. Its possible.
Q Such that even after he loss
consciousness he would still
have been able to move his
feet?
27
TSN,
25
August
2015,
p.
57.
A Yes sir.
Q And again exert some effort to
try to protect himself?
A Yes sir.”28
13.5. The assailant had motive to enter the room.
Laude had at least P20, 000.00 with him when he entered
room 1.29 However, when the police found him, there was no
money except for a little over P1, 000.00 pesos. The NCIS
confiscated all the personal effects of Pemberton but no such
money was found.30 Someone took Laude’s money; and it
was not Pemberton.
13.6. The Prosecution may argue that Pemberton has
no evidence that another person entered the room and
choked Laude when Pemberton left. The Prosecution is only
partly correct. The proof is not Pemberton’s evidence but the
Prosecution’s itself. Exhibits “UUUUUU” and “UUUUUU-1” or
the Results of USACIL DNA Report unmistakably prove that a
DNA profile of a person (other than that of Laude’s and
Pemberton’s) was found on the neck of Laude. Par. 2 of the
USACIL DNA Report thus states:
“On 21JAN15, the U.S. Army Criminal
Investigation Laboratory (USACIL) completed a
DNA forensic examination of numerous items of
evidence submitted by NCISRA Manila. During
the DNA examination, a mixture of at least
three DNA profiles was obtained from neck
swabs of V/LAUDE. The major contributor was
V/LAUDE. The remaining profiles could not be
conclusively interpreted due to an insufficient
amount of genetic data.”
13.7. Hence, there are three DNA profiles found on the
neck of Laude. Understandably, one is Laude’s. Even
granting that the second DNA profile is Pemberton’s, the
third one necessarily belongs to the assailant – the person
who owns the piece of jewelry in the hands of Laude, the
person who got Laude’s money, and the person who killed
Laude.
14. This Honorable Court is duty-bound to acquit
Pemberton. It has not been shown that he killed Laude to the
exclusion of others. It cannot be denied that there exists an
alternative hypothesis consistent with his innocence. For this
reason alone, he must he acquitted. The Supreme Court’s
pronouncement in People v. Anabe31 is instructive, thus:
“There being no eyewitness to the crimes charged,
Section 4 of Rule 133 of the Rules of Court on
circumstantial evidence applies:
SEC. 4. Circumstantial evidence, when
sufficient. Circumstantial evidence is sufficient for
conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences
are derived are proven; and
(c) The combination of all the
circumstances is such as to produce a
conviction beyond reasonable doubt.
In amplifying the above-listed conditions, this
Court has held that circumstantial evidence suffices to
convict an accused only if the circumstances proven
constitute an unbroken chain which leads to one fair
and reasonable conclusion pointing to the accused, to
the exclusion of all others, as the guilty person; the
circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused
is guilty, and at the same time inconsistent with any
other hypothesis except that of guilt.
As a corollary to the constitutional precept of
presumption of innocence, a conviction based on
circumstantial evidence must exclude each and every
hypothesis consistent with innocence.
XXX
In the appreciation of circumstantial evidence,
the rule is that the circumstances must be proved,
and not themselves presumed. The circumstantial
evidence must exclude the possibility that some
other person has committed the offense charged.
The prosecution has not come forward with any
evidence completely discounting the possibility that
some person other than appellant could have stabbed
Uy to death. It bears reiteration that at least three
persons were present at the crime scene. Even
with Felicita's discharge, the prosecution still needed to
exclude the possibility that Conrada was the one who
used the recovered kitchen knife to stab Uy to death.
It failed to do so, however. Such failure is fatal to its
case given that its evidence had already missed that
indispensable nexus between appellants' presence at
the crime scene and his participation in the stabbing of
Uy in order to hold him liable therefor as well.
Courts must judge the guilt or innocence of the
accused based on facts and not on mere conjectures,
presumptions, or suspicions.”"
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:
http://www.thestar.com/topic/
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.ca/2013/12/the-charles-smith-award-presented-to_28.html
I look forward to hearing from readers at:
hlevy15@gmail.com.
Harold Levy; Publisher; The Charles Smith Blog;
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