Thursday, March 19, 2009

'Nicole' faces perjury raps

MANILA, Philippines - Justice Secretary Raul Gonzalez believes that “Nicole” and her lawyers could be charged with false testimony and perjury after she backtracked on her complaint that she was raped by US Marine Lance Corporal Daniel Smith.

Speaking to reporters yesterday, Gonzalez said it appeared that “we have been taken for a ride” in the Subic rape case.

“So many problems have been created by this. Foreign policy has been affected,” he said. “So much time has been spent. It has split public opinion and caused a lot of emotional upsurge. So whatever she did has created a lot of problems for us.”

Gonzalez said Nicole’s recantation will have “no bearing” on Smith’s appeal before the Court of Appeals since it is not part of the records of the trial.

“Unless you can convince the court to open the trial to admit the affidavit, this will not pass as newly discovered evidence,” he said.

“Under the Rules of Court, there is such a thing as the court taking judicial knowledge or judicial cognizance of events that take place,” he added.

Gonzalez said the CA justices are aware that Nicole had backtracked on her court testimony through the newspapers.

“That is only where this thing could play some role,” he said. “It is up to the court if the justices subconsciously take cognizance of the affidavit. But technically, it should not be given weight.”

Gonzalez said it is remote that the CA would allow a retrial of the case since Nicole is no longer in the country.

Nicole should not ask the court to reopen the case, he added.

He could not recall any case where recantation of the complainant or witness had been given weight after conviction of the accused, Gonzalez said.

‘It was a family decision’

The mother of Nicole said yesterday her daughter’s recantation was a family decision.

“(President Arroyo) has nothing to do with this,” she told “It was a family decision.”

It was unlikely that they would consult the government because “the government has never helped us,” she added.

Nicole’s mother said her daughter wants to move on as she wants to get married abroad.

In a separate interview with GMA 7, Nicole’s mother denied any alleged “US pressure” on her daughter to recant her testimony of the rape.

Speaking in Filipino, she said her family had decided to put an end to the “sad story” of her daughter.

“My family has grown tired of this (rape) case for the past three years,” she said. “So we thought that that’s enough.”

Smith’s lawyer admits firm notarized Nicole’s affidavit

Jose Justiniano, Smith’s counsel, told The STAR a lawyer from his firm – Sycip Salazar Hernandez and Gatmaitan – notarized Nicole’s affidavit but did not act as her legal counsel.

“Choice of client yan, it’s a wrong concept to say that we acted as counsel for Nicole,” he said.

Justiniano said the lawyer from his firm “simply notarized” the sworn statement of Nicole.

“If you go to a notary public to have a document notarized, does it mean lawyer mo na ‘yun?” he asked.

If Evalyn Ursua wants to know about things, she should ask Nicole’s mother who handed her the letter terminating her services, Justiniano said.

Ursua, Nicole’s former lawyer, plans to charge Smith’s counsels with unethical law practice for allegedly making Nicole execute an affidavit without her knowledge.

Ursua questioned why Nicole’s sworn statement was executed in the office of Sycip Salazar Hernandez and Gatmaitan.

The lawyer who notarized Nicole’s affidavit recanting her testimony during the Subic rape trial is a an associate of the law firm defending Smith, she added.

Ursua said she will ask the Supreme Court to investigate the supposed “unethical practice” of Sycip Salazar Hernandez and Gatmaitan.

Nicole’s affidavit of March 12, 2009 was a “secret” document that was made behind her back “under suspicious circumstances,” she added.

Ursua said it was a “secret affidavit” that did not bind her as Nicole’s counsel of record.

“How can I stop acting as counsel if I have not been terminated yet, when I did not know (about it),” she said.

Ursua said the validity, voluntariness, and genuineness of the affidavit is questionable since Nicole cannot verify it.

Nicole’s mother told her that there was no affidavit when she handed her a letter on March 16, 2009 informing her that her services were being terminated, Ursua added.

Ursua said the contents of the sworn statement did not come from Nicole.

Yung language na ‘yun sa level of articulation ni Nicole, hindi kanya yan (Nicole is not capable of that language and level of articulation),” she said.

“I know Nicole, I know how she talks, I know how she writes, that’s not Nicole. That affidavit is not evidence, not part of the evidence.”

Smith’s transfer on hold

The government will not ask for Smith’s transfer to Philippine custody while awaiting the courts’ evaluation and decision on the issue, the Department of Foreign Affairs said yesterday.

DFA spokesperson J. Eduardo Malaya said Smith will remain at the US embassy while they consult the agencies concerned before it complies with the Supreme Court order to move him to a Philippine facility.

“The issues pertaining to the conviction of Lance Corporal Smith and the custody arrangements over him are pending with the courts,” he said.

“We look to the courts for their evaluation and decision on these matters in the light of relevant factors.”

The DFA said the SC also referred to the matter of appropriate custody or detention arrangements under the Visiting Forces Agreement.

“The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities,” the DFA said, quoting the treaty.

“United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.”

The DFA said the Office of the Solicitor General, the Department of Justice and the Department of the Interior and Local Government will be consulted on steps to be taken.

In the meantime, pursuant to the orders of the Supreme Court, “the status quo will be maintained,” the DFA added.

‘Case to prosper without Nicole’

The rape case against Smith can prosper despite the recantation of Nicole, according to a lawmaker.

Albay Rep. Edcel Lagman said Nicole’s recantation and her departure for the United States have left more questions than answers.

“However, the legal situation remains that the rape case against Smith, which is a public crime, can prosper notwithstanding the belated affidavit of recantation from the victim,” he said.

Lagman said Nicole’s affidavit contains “facts consistent with her being raped by Smith.”

These include her admission that she was “virtually unconscious” when Smith had sex with her and that she was “too intoxicated” to repel his advances, and that she is in doubt as to what had transpired, he added.

Lagman said Smith’s payment of P100,000 in damages to Nicole “is a badge of guilt.”

“Why should an accused appealing his conviction pay damages if he is not liable for the crime he has been convicted of?” he asked.

Lagman said there might have been “a conspiracy” to “mock and derail” the Philippine judicial system, secure freedom for Smith, and preserve the Visiting Forces Agreement.

“If she was issued an immigrant’s visa so she can stay in the US for good, what entitles her to an immigrant’s visa?” he asked.

“Did this happen during the pendency of Smith’s appeal with the Court of Appeals?”

Lagman wants to know if Nicole had accepted money other than the P100,000 in damages she claims she received from Smith.

“P100,000 is the equivalent of $2,000,” he said.

“How can she stay in the US for good with $2,000? Who bought her ticket and from what airline? Who was her traveling companion?”

Senators dismayed

Senators expressed dismay yesterday over Nicole’s decision to recant her testimony in court.

Sen. Francis Escudero said Nicole’s recantation should not be used as leverage by the United States to negate efforts to abrogate the VFA.

“Nicole may have recanted but this doesn’t mean that Mr. Smith now goes to Washington,” he said.

“And the US government should be advised not to use Nicole’s latest true confession to plan his exit out of the country.”

Escudero said Nicole’s affidavit is not a “boarding pass to freedom” as legal procedures would have to be followed.

“I cannot blame Nicole for deciding to settle out of court,” he said.

“But her affidavit will just be treated as a mere scrap of paper unless she affirms it in open court.”

Senators Rodolfo Biazon, Joker Arroyo, Loren Legarda and Pia Cayetano agree that Nicole’s action would have a great impact in the renegotiation of the VFA.

Biazon said Nicole’s recantation has raised moral, legal and judicial questions.

“(These questions include) who is the victim, Nicole or Smith?” he asked.

“Smith had lost his career if not a big part of his life. Nicole even raised the question of deficiencies of our justice system. Justice for whom? For Nicole? For Smith? For the Filipino people? Or justice for the Filipina Maria Clara?”

Biazon said the SC’s decision on the jurisdiction issue should be respected by the US government

“The SC has ruled that the American should be immediately turned over to Philippine authorities for imprisonment after he was convicted of the crime of rape by a Philippine court,” he said.

Legarda expressed dismay over Nicole’s sudden decision to discontinue her search for justice.

“America’s act of buying Nicole’s silence is a precedent,” she said.

“They are bound to do this every time. While America keeps its processes intact and its soldiers protected, our morality as a nation is trampled upon, our justice system spat on.”

Cayetano said the issue has gone beyond Nicole.

“Long before Nicole decided to back out, her government already sold her case,” she said.

“(Nicole’s decision) is the biggest letdown because Nicole’s case involves not only the pursuit of justice by a woman whose rights have been violated, but also of an entire people’s assertion of sovereignty before the world’s super power, the United States.”

Nicole, GMA and Obama

Makati Mayor Jejomar Binay found it “uncanny” that Nicole recanted her allegations of rape against Smith a few days after US President Barack Obama called up President Arroyo and assured her of US support for the Visiting Forces Agreement.

“Under the Arroyo administration, nothing happens by accident, especially on such a sensitive and high profile issue as the VFA,” he said.

Binay, United Opposition president, said Malacañang has a lot of explaining to do as Obama’s call came after the Supreme Court ruled that Smith should be detained in a Philippine jail, not the US Embassy.

“Where was the Arroyo government when all these were happening,” he said.

“Was it aware of these developments and its implications? If it were, then it needs to explain a lot of things. If it wasn’t, then the administration abetted an injustice through its negligence.”

Binay said the US embassy should have issued a categorical statement that Nicole had been allowed into the United States.

“Questions will remain whether she (Nicole) was allowed to enter the US on humanitarian grounds, or as part of a settlement that includes her recantation,” he said.

Binay, a former trial lawyer, said that there was presumption of guilt on the side of Lance Corporal Smith when he offered Nicole P100,000 as settlement.

“In criminal cases, if the accused offers a settlement, there is a presumption of guilt, for why would an innocent person offer a settlement?” he said.

Binay agrees with Makati Judge Benjamin Pozon, who convicted Smith of rape, that “Nicole’s” recantation would not necessarily lead to his acquittal.

“Only the trial court can appreciate the demeanor of the complainant, and in the case of Nicole, she showed the demeanor of a victim during the trial,” he said.

On the other hand, the Bagong Alyansang Makabayan said Nicole’s recantation was an offshoot of Obama’s call to GMA.

Renato Reyes Jr., Bayan secretary-general, said Nicole has become a “sacrificial lamb” to preserve US interests in the country.

“Her recantation should be seen in the context of the US and Arroyo government’s efforts to preserve the VFA at all cost, even if this means acquitting Smith and totally discrediting the victim Nicole,” he said.

“It may have been a combination of pressure and hopelessness that made Nicole recant her earlier statement that she was raped.”

Reyes said the Arroyo administration, in partnership with the US, was working for the acquittal of Smith.

“The two governments believe that declaring Smith innocent will make the custody issue moot and will weaken the case against the VFA,” he said.

Reyes said the issue of Smith’s custody has been a take-off point for efforts to question the validity of the VFA.

“Despite a Philippine Supreme Court ruling ordering the Philippine government to negotiate the transfer of Smith to Philippine authorities, both the US and Philippine government have chosen to uphold the status quo,” he said.

“The protracted nature of the legal process, along with a subservient regime, discourages victims from pursuing their cases. We have only the US and Arroyo governments, and the VFA to blame for what has happened to Nicole.” — With Michael Punongbayan, Jess Diaz, Mike Frialde, Perseus Echeminada, Pia Lee-Brago, Evelyn Macairan, Christina Mendez - By Edu Punay (Philstar News Service,

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