Lawyer Noel Malaya said they will push for the approval of their motion to allow them to file a demurrer to evidence, which is in effect a waiver of defense lawyers’ duty to present evidence that could exculpate the defendant of criminal liability.
"We will not present evidence in the meantime," Malaya said. Prosecutors have actually "waived" their right to oppose the defense motion, filed on Nov. 29, because the five-day period during which they were supposed to file an opposition has lapsed.
That means the defense may now file a demurrer, although the Sandiganbayan special division created to try Estrada has yet to approve its earlier motion.
Under court procedures, the court can either hand down a conviction right away on a demurrer motion if there is sufficient evidence or deny the motion and set it for trial.
Malaya earlier said the trial — which has been dragging for two and a half years — may resume between January and March if the anti-graft court rejects their motion.
Hearings on their motion seeking court permission alone might take the whole December and the trial might be further set back by the holidays, Malaya said.
Estrada was ousted in a military-backed popular protest in January 2001 amid corruption charges.
He maintains he has not resigned and claims he was illegally forced out of office. Estrada was replaced by President Arroyo, who was then vice president.
The former actor, who still enjoys huge support from the poor, insists he still enjoys immunity from suit and does not recognize the authority of the Sandiganbayan.
He withdrew his lawyers early in the trial but the court appointed him counsel against his wishes.
He is accused of amassing more than P4 billion during his 31-month rule. He allegedly ran an illegal gambling protection racket, embezzled state funds and profited from insider trading. He theoretically faces the maximum penalty of death if convicted.
The prosecution rested its case in April and the defense was originally scheduled to present its side in June.
However, an Estrada motion that sought a dismissal of the charges against him delayed the trial several times.
He argued that the Supreme Court erred when it swore in Mrs. Arroyo to replace him after declaring the presidency vacant during the 2001 uprising.
The Sandiganbayan rejected the motion, saying a lower court cannot overturn a Supreme Court ruling.
To bolster his case, Estrada filed an impeachment complaint in June against eight Supreme Court justices, including Chief Justice Hilario Davide Jr., for allegedly playing partisan politics to legalize his ouster.
It was recently junked by a House of Representatives committee for being insufficient in substance. The House is scheduled to vote whether to dismiss it or send it back to the committee for investigation.
Speaker Jose De Venecia Jr. expects the legislature to dismiss the complaint.