Tuesday, September 22, 2015

Part two: U.S. Marine Joseph Scott Pemberton: The Phillipines; Part two 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 two: "Cruelty". "The foregoing considered, it is evident that the Prosecution’s basis for saying that there is cruelty, i.e., that Laude died due to drowning, is absolutely erroneous. Moreover, there is even no evidence on record that remotely suggests that Pemberton submerged Laude’s head in the toilet bowl. The fact that Laude was found in the bathroom does not justify the conclusion that Pemberton submerged his head into the toilet bowl."

Countdown to Wrongful Conviction Day:  Friday, October 2,  2105; 10 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;


51. In People vs. Dayug and Bannaisan, 1 the
Supreme Court explained the meaning of cruelty:
“There is cruelty when the culprit enjoys
and delights in making his victim suffer
slowly and gradually, causing him
unnecessary moral and physical pain in the
consummation of the criminal act that he
intends to commit. The mere fact of inflicting
various successive wounds upon a person in
order to cause his death, no appreciable time
intervening between the infliction of one wound
and that of another to show that he had wanted
to prolong the suffering of his victim, is not
sufficient for taking this aggravating
circumstance into consideration.”

52. The Prosecution asserts that there was cruelty
because Pemberton “repeatedly push down and dunk
1 G.R. No. 25782, 30 September 1926.
[Laude’s] head inside the toilet bowl, and drown [him],
which directly caused [his] death by ASPHYXIA DUE TO
DROWNING AND STRANGULATION.”2 However, there is no
evidence on record to support these conclusions.

53. To prove drowning, the prosecution presented the
following: (a) the Medico-Legal Report No. A14-163 RCLO33
prepared by Dr. Raynaldo Dave, Jr., who concluded that
Laude’s cause of death is “asphyxia by drowning”; and (b)
the Medico-Legal Report No. H14-120, or the
histopathological examination conducted by the PNP Crime
Laboratory's Dr. Maritess Ombao, which states that the
cause of Jeffrey's death was “asphyxia due to drowning and
strangulation.” 4 However, as painstakingly, clearly, and
undeniably shown by Dr. Fortun—the country’s leading
forensic pathologist—the conclusion that Laude died because
of “asphyxia by drowning” is absolutely baseless and
As for Dr. Dave, his conclusion that Laude died due to
“asphyxia by drowning” is based on his following findings on
his cadaver: (a) there was a bloody non-foul smelling
discharge oozing out from the mouth; (b) the cut section on
the secondary bronchi revealed lumens that contain watery
blood tinged fluids; and (c) the right and left lungs were
boggy with brown external surface and with moderate
amount of anthracotic pigments, and that cut sections
revealed dark red homogenous boggy parenchyma, there
are no air bubbles, and watery bloody fluid oozed out from
the parenychyma upon application of pressure. However, as
explained by Dr. Fortun, contrary to Dr. Dave’s opinion,
none of these matters lead to the conclusion that the cause
of death is drowning.

As for the bloody non-foul smelling discharge oozing
out from the mouth, Dr. Dave opined that this supports the
finding of drowning because it “means that there is an
accumulation of fluid whether in the lungs and in the
abdomen or the stomach of the cadaver.”5 As explained by
Dr. Fortun, this conclusion is erroneous, thus:
“[Atty. Tolosa] xxx The latter portion of the
testimony concluded that this
finding, the blood sticky fluid
coming out from the mouth,
[is] one of [Dr. Dave’s]
reasons for saying that the
cause of death is drowning.
What can you say about that,
[Dr. Fortun] I disagree.
Q. What would be your reason
for disagree[ing]?
A. As described, there is
material that is blood like[.]
[It is] fluid coming out of the
mouth which is a common
post mortem finding. Fluid
inside the body after death
can come out of the orifices
like the nose and the mouth.
Q. So, what relation that this
matter have, if any, to the
A. It is not enough … to
conclude that there was
Q. You mentioned a term a while
ago ‘non- specific’. Could
you please explain to us
what non-specific means?
A. Its means ‘not specific’ and
therefore, something is not
definitely or sure to mean
one thing.
Q Could this matter, ‘blood
sticky fluid coming out
from the mouth,’ is it nonspecific
with regards to
A Yes.”6
Dr. Fortun also provided elucidation with regard to Dr.
Dave’s erroneous opinion that the lumens that contain
watery blood tinged fluids found in the secondary bronchi
lead to the conclusion of drowning, thus:
“[Atty. Tolosa]: With regards to second
basis, that item No.5, under
the heading “chest and
abdomen”, then cut section
on the secondary brochi
revealed lumens that contain
watery blood tinged fluids.
About this findings stated in
his direct testimony, as
reflected in pages 33 to 34 of
the TSN, “this means that
there is abnormal
accumulation of fluid
whatever it is that should
not be there because this
condition – in the
environment”. Can you react
to this, Doctor?
[Dr. Fortun]: As stated, what was probably
meant was there was fluid in
the airways therefore, this is
edema. Fluid which should
not be there. I would agree.
Atty. Tolosa: That there is fluid that should
not be there?
A. Yes sir, as described.
Q. But with regards to the
finding and conclusion
that this matter leads to
the conclusion that the
cause of death is
drowning, what can you
say about that,Doctor?
A. Again, by itself that would
be very difficult, not
specific, there are many
instances and conditions
wherein you find
pulmonary edema in a
dead body.
Q. Again, pulmonary edema is
non-specific, with regards
to that?
A. Yes sir.”7
Lastly, Dr. Fortun also disproved Dr. Dave’s opinion
that the fact that the lungs are boggy, congested, and
edematous leads to a conclusion of death by drowning, thus:
“[Atty. Tolosa]: How about Item No. 6, under
the subheading “chest and
abdomen”, in the dorsal
portion of the medico-legal
(The witness is reading the
medico-legal report.)
[Dr. Fortun]: Can you please go over it,
Doctor. Can you go over the
item and tell us reaction to
this? That this item leads to
the conclusion that the cause
of death of Laude is asphyxia
by drowning?
A. This is a part of the report
wherein the lungs are being
described. Both external
surfaces and the cut
sections. My comment would
be, these are also nonspecific.
The lungs were
apparently measured, which
is not the standard.
Q. What should have been thestandard followed?
A. The lungs are routinely
weighed. Because weighing
the lungs would tell you if
there is pathology or none
such as accumulation of fluid
or blood. The lungs were
described as boggy and my
undersranding here is that
they were heavy and the
color particularly when cut is
described as dark red. That
means that the lungs are not
normal and they are dark red
most likely pulling of blood or
congestion. The word
homogenous was also used
which means that there were
no discreet lesions found. So,
I understand that the cut
surfaces were uniformly dark
red with no specific lesions.
The statement here that
says, “no air bubbles” is
vague to me because this is
inconsistent with the
description earlier of the lung
being heavy and boggy and
the bronchi or the airways
containing watery fluid. The
line here which says, bloody
fluid oozing out, upon
application of pressure this
would be consistent with the
heavy congested lung. Most
likely with fluid also so the
over all picture I get is, the
lungs are abnormal and they
are congested and
Q. But this conclusion that
the lungs are abnormal
and its congested and
edematous, does this lead
to conclusion of drowning?
A. No sir. That is also nonspecific
findings and
common in post mortem
As for Dr. Marites Ombao, Dr. Fortun also explained
that her finding that “intra alveolar edema is consistent with
asphyxia due to drowning” is erroneous. Dr. Fortun also
explained that it was erroneous and baseless for Dr. Ombao
to reach a conclusion of drowning considering that she only
examined three pieces of lung tissues. Consider the
“[Atty. Tolosa]: Now, going on to the findings
of Dr. Maritess Ombao, do
you have a copy of her
medico-legal report no. H14-
[Dr. Fortun]: Yes sir.
Atty. Tolosa: For the record, this is the
prosecution’s Exhibit S.
Q Dr. Ombao concluded in
her report that the cause
of death is asphyxia due
to drowning and
strangulation. She further
stated there, that the
findings of entra alveolar
Edema is consistent with
asphyxia due to
drowning. Can you also give
your reaction with regards to
this conclusion, Doctor?
A My understanding is that, Dr.
Ombao received the three
pieces of lung tissues
recovered by Dr.Dave and
therefore, her examination
was limited to only these
pieces of tissues. She found,
as described evidence of
pulmonary edema. Again,
merely seeing this in the
microspcope does not lead
one to conclude as to the
cause of death being given
only very limited
information. Because again,
pulmonary edema
microscopically is nonspecific.
Q What could you say about
the finding cause of death
by drowning by the
limited examination of
only three pieces of
tissues of the lungs?
A It has no basis.”9

54. As testified by Dr. Fortun, proving that a person
drowned is difficult. There are no autopsy findings indicative
of drowning. There are no universally accepted diagnostic
laboratory tests for drowning. The doctor conducting the
autopsy must rule out any other possible causes of death
before he can conclude that the person died from
drowning. 10 In this regard, Dr. Fortun explained that
based on the evidence on record, Laude’s cause of
death is not asphyxia by drowning, but “asphyxia …
due to pressure on the neck,” thus:
“Q Based on the result of the
examination conducted by
Dr. Dave, as reflected in
Exhibit P, and your
examination of the other
relevant documents in this
case, what is your conclusion
as to the possible cause of
death of the deceased
Jeffrey Laude?
A I believe that based on
the evidence, the physical
findings the more the
probable/plausible cause
of death would be another
form of Asphyxia but this
would be due to pressure
on the neck.
Q Again, what is your basis
for saying that that’s the
plausible cause of this
death in this case?
A Dr. Dave, listed some
findings which will be
consistent with this.
Q Can you please tell us, what
are those, Doctor?
A On the first page of his
report, under FINDINGS
where he was describing the
cadaver, he mentioned
lividity at the face. And
then on the second page, he
was describing that the
tongue was protruding,
particularly No. 11, where he
described the tongue as
having marks produced by
several teeth. This would
happen if there was pressure
on the tongue.
Q Lividity on the face how is
that related to strangulation
by application of pressure in
the neck?
A If there is pressure in the
neck this interferes with
blood circulation and
particularly the viens
carrying blood from the head
down to the heart they are
easily compressed.
Therefore, the part superior
upper area of the neck
where it is compressed would
have blood accumulation and
this would appear as a
discoloration or congestion.
Q How about to the fact that
the tongue was protruding,
also shown in the picture
presented by the prosecution
of Jeffrey Laude, how is that
also connected to
strangulation by application
of pressure on the neck?
A The protruding tongue is
produced if the pressure on
the neck pushes the floor of
the mouth and that means
the tongue now goes out.
Q Aside from these two
matters, are there any
findings that support your
conclusion that the more
plausible cause of death is
application of pressure in the
A The other pertinent findings
here also, under ‘head and
neck’, No. 3 and 4, sub
hemmorhages both on
right and left eyes. This
could be part of the increased
pressure on the head
causing the blood vessels to
Q When you say sub
conjunctival hemmorhage in
layman’s terms, this could be
bleeding in the eye, Doctor?
A Yes sir, in particular on the
surface of the eyeballs, as
Q Please go on Doctor, if you
have any--
A Under the ‘chest and
abdomen’ No. 2 and 3, he
described here structures is
the neck. No 2, it is
described that the external
portion of the right front
of the larynx is contuse.
And no. 3, there is
hematoma on the upper
inner portions of the
larynx below the glotiss.
Q Explain to us why this
findings lead to the
conclusion that the cause of
death is application of
pressure in the neck.
A What is being described here
is the larynx or the voice box
and this is located at the
center of the neck and as
described there were injuries
recognized. Words such as
contuse hematoma they
indicate that bleeding was


Q I’m showing to you a picture
labelled DSC 04-93.gpj, can
you please take a look at this
picture and tell us if there’s
anything here which is also
indicative of death by
application of pressure?
A This is an image showing the
front of the decedent’s face
including the neck and there
are findings here that would
be consistent with the
description. Prominent here is
the dark colored tongue
protruding between the
lips, this was described in
the report. xxx.


Q Did you see anything else in
this pictures that could be
indicative of death and to
application of pressure in the
A Yes sir, I can see some pin
point hemorhages
scattered particularly on the
upper part of the face, and
these are called ‘petichiae’.
Q Will you explain to us why
are these petichiae
indicative of death through
application of pressure?
A It is a sign that there could
have been pressure on the
neck as part of the
congestion where blood
connects above the
constriction it cannot return
to the heart, small blood
vessels called capillaries
break from the pressure and
they can be seen on the skin
as small pin point
Corollary to the foreoing, Dr. Fortun explained that the
pulmonary edema found on Laude’s cadaver by Drs.
Dave and Ombao was not caused by asphyxia due to
drowning. Rather, it was caused by asphyxia due to
application of the pressure of the neck, thus:
Q. So, you confirmed that there
may be findings upon
examining the lungs of the
cadaver of Jeffrey Laude
which is consistent with the
presence of pulmonary
edema. But you also stated
that you do not agree with
their conclusion that
pulmonary edema leads to
the conclusion of cause of
death as drowning. Because
you said, pulmonary edema
would be produced by
different causes and you also
stated a while ago that based
on your examination it
appears that the more
plausible cause of death is
application of pressure in the
neck as a form of asphyxia.
Now again, this maybe
obvious but what do you
think could have been the
cause of the pulmonary
edema in the lungs of
Jeffrey Laude in this case,
if not drowning?
A As I said earlier, pulmonary
edema is a common
observation in many deaths.
There are many causes. What
makes it common is the fact
that one mechanism is
terminally the heart starts to
fail. The pumping action
diminishes or weakens and
knowing the circulation of
blood and the function of the
heart just to simplify, if the
left heart or the left side
starts to fail, the blood is not
propelled outward to the
different parts of the body.
Instead it will pull back into
the lungs and the lungs
would now become
congested. The blood vessels
are filled with blood and this
means that the fluid within
the blood vessels or as part
of blood is now pushed out of
the blood vessel walls. This
Fluid will look for spaces in
which to collect and the lung
normally is made of air sacks.
They should be empty but
the spaces now will fill out
now with the fluid and this is
seen as pulmonary edema.
A. This scenario, this condition
that you described which
leads to the presence of
pulmonary edema in the
lungs, is this consistent
or would this appear when
the cause of death
asphyxia due to
applicaiton of pressure on
the neck?
A Yes sir. It’s a consistent
Q Aside from your testimony
Dr.Fortun, is there any
matter that you could show
us to support in evidence to
support this?
A Yes, as far as mechanism of
pulmonary edema and its
auses are concerned, is
contained in basic pathology
references and I have here
Basic Pathology book.
Q Please show us the specific
part of this book that
supports your statement?
Just for the record, what
book are you reading,
A This is pathologic basis of --
by Robbins Cotran, the 9th
edition which is the most
recent, 2015. This is the
basic text book in pathology
for medical students and of
course even in pathology
residency . In particular in
page 671, there is the topic
of pulmonary edema and this
contiuies on page 672. In
particular, there is a table
(15-1) on page 671 stating or
titled Classification and
causes of pulmonary edema.
Q It states here that one of
the causes of pulmonary
edema is an indirect
injury - trauma?
Q Yes sir.
Q And is trauma a form or an
application of pressure in
the neck is a form of
A Yes sir.”12

56. The foregoing considered, it is evident that the
Prosecution’s basis for saying that there is cruelty, i.e., that
Laude died due to drowning, is absolutely erroneous.
Moreover, there is even no evidence on record that
remotely suggests that Pemberton submerged Laude’s head
in the toilet bowl. The fact that Laude was found in the
bathroom does not justify the conclusion that Pemberton
submerged his head into the toilet bowl. Indeed, it Laude's
nose and mouth were submerged in the toilet bowl water
when Pemerton left him, Gallamos would not have concluded
that Laude merely fainted when he saw him. None of the
pictures showed Jeffrey's face submerged in water. One
picture that was enlarged clearly showed that the nose and
mouth were out of the water. SOCO's Maj. Edmar Dela Torre
said that Laude’s head was leaning on the bowl, but his
“nose and mouth were not actually submerged in the water
inside that bowl.”13 SOCO’s SPO2 Jarlowe Cruz even echoed
this admission. 14 Further, Dr. Fortun testified that the
Prosecution’s theory that Pemberton dunked Laude’s head
inside the toilet bowl is inconsistent with the evidence, thus:
“[Atty. Tolosa]: The prosecution claims that
Pemberton repeatedly
dunked Laude’s head in the
toilet bowl in the comfort
room of Celzone Lodge.
Having in mind the physical
evidence available on this
case including the position of
the body of Laude as found,
the lay out the comfort room,
his location in that comfort
room, what could you say
about that?
[Dr. Fortun]: Knowing their lay out of
the toilet and finding the
body there if the intention
was to dunk the head
inside the toilet bowl, my
observation is it would
have been more logical
to do that on the more
accessible side of the
toilet bowl. I find it
unusual that the body is
on the other side which is
more cramped.
Atty. Tolosa: Meaning the location or
position of the body is
inconsistent with the
claim that someone
dunked the head of Laude
in the toilet bowl?
A If that was the intention
I find it inconsistent.
Q But consideiring that location
of the body of Laude found in
that restroom, would that be
consistent to Pemberton’s
claim that the tried to revive
by turning on the shower and
having him drenched on
A Based on what I reviewed,
the location of the body was
actually in the shower area
and practically under the
shower head and in faucet,
that would be consistent with
that claim.”15

57. Even assuming for the sake of argument that
Jeffrey’s head was submerged in the toilet bowl, there is no
proof that this was done while he was alive. This detail is
important if cruelty is to be validly appreciated. This
qualifying circumstance does not exist where the victim was
already dead when the supposed acts of cruelty were
performed.16 Thus, absent any evidence that Jeffrey was
alive at the time of the alleged acts, there is no basis for a
finding of cruelty.

58. Further, the mere presence of wounds on the body
of Jeffrey does not warrant a finding that cruelty exists. It is
not the injuries but the perpetrator’s commission of the acts
“for his pleasure and satisfaction”17 and to cause “the victim
unnecessary physical and moral pain”18 that determines the
presence of this qualifying circumstance. Thus, in People v.
Ilaoa,19 the Supreme Court refused a finding of cruelty even
when the corpse of the victim was decapitated and had
forty-three (43) stab wounds. Said the Supreme Court:
“Number of wounds alone is not the criterion for the
appreciation of cruelty... Neither can it be inferred from the
mere fact that the victim's dead body was dismembered.”20
Consistent with this, the Supreme Court, in People v.
Pelopero,21 also ruled that there was no cruelty even if thevictim was hogtied to a bamboo pole and dropped into a
well. The Court explained that what is essential is evidence
that the accused “for their pleasure and satisfaction, caused
the victim to suffer slowly and painfully and inflicted on him
unnecessary physical and moral pain.” 22 In People v.
Artieda,23 the Supreme Court also held that “[t]here being
no showing either that the other wounds found on the body
of the victim were inflicted to prolong his suffering before
the fatal wound was dealt, it cannot be concluded that the
aggravating circumstance of cruelty was duly proven.
Cruelty cannot be presumed.”

59. Certainly, if the abovementioned injuries, and
even dismemberment, suffered by the victims in Ilaoa and
Pelopero are not enough to show the presence of cruelty,
there can be no doubt that the minor injuries suffered by
Laude are not sufficient to support a finding of said
qualifying circumstance.

60. As the elements of the three qualifying
circumstances (treachery, abuse of superior strength and
cruelty) are clearly not present in this case, there can be no
finding of murder in this case.


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Harold Levy; Publisher; The Charles Smith Blog;