Olongapo judge: Court, not DOJ, will decide who among GIs will be charged

OLONGAPO CITY — The judge tasked to hear the case of four US Marines accused of raping a 22-year-old Filipino last November said yesterday the court will decide who among the Americans will be charged.

Vice Executive Judge Renato Dilag of the Olongapo Regional Trial Court Branch 73 said he would have to evaluate the decision of the Department of Justice (DOJ) on the motion to review the prosecutor’s resolution charging the four US servicemen with rape.

On the other hand, Justice Secretary Raul Gonzalez denied yesterday a news report that had said he was considering dropping the rape charges against three of the US Marines, namely, S/Sgt. Chad Carpentier and Lance Corporals Keith Silkwood and Dominic Duplantis.

At a press conference, Gonzalez had said he was bent on upholding the rape charges against Lance Corporal Daniel Smith, who admitted having "consensual sex" with the victim.

"My task is to find out the extent of their participation and what will make them liable," he said.

"When you speak of crime, there are three stages. Whether you could be charged as a principal, as an accomplice or as an accessory.

"Being an accomplice is one level lower than the principal accused and being an accessory is one level lower than an accomplice."

Gonzalez said Smith’s claims that he did not rape the victim, but had consensual sex with her could be a defense on his part.

"But he has to prove that in court," he said.

"The review that I am conducting in connection with the motion for review filed by the US Marines is to determine whether they (Carpentier, Silkwood and Duplantis) were part of the conspiracy.

"Under the law, you have to prove conspiracy beyond reasonable doubt. Conspiracy is not presumed," he said.

Gonzalez said that, contrary to news reports, the possibility is that charges against Carpentier, Silkwood and Duplantis might be downgraded from principal to either accomplice or accessory.

"Under our law, a criminal case is always presumed to be in favor of the accused," he said.

"It could be downgraded to an accomplice which is one level lower than the principal. I have my personal knowledge on this case based on facts.

"The determination of probable cause against all the accused will be based on the testimonies of the victims, the witnesses and the accused themselves.

"The job of the panel is to recommend. Or I modify it. Whatever the panel will say, I can always change it," Gonzalez said.

He said although he could possibly dismiss the case against the US Marines if there is no evidence against them, it would still depend on whether Dilag adopts his decision.

Gonzalez said if no evidence is found against the Americans, he will have to order the prosecutors handling the case to drop the charges.

"Normally, it should be binding in Court," he said.

"But the court has already determined probable cause on its own. If I say, ‘There is no probable cause,’ it will still be up to the court.

"The court should respect the decision of the secretary of justice. But the court may insist on proceeding with the trial," Gonzalez said.

Dilag has ordered the arraignment of Smith, Silkwood, Duplantis and Carpentier on Friday, March 24.

The 60-day period for the Justice department’s review of the case, which was granted upon petition by Carpentier, elapsed yesterday.

In his order dated March 14, Dilag said the arraignment will be made "without prejudice to the action this Court may take on the eventual resolution of the Department of Justice on the aforesaid petition."

Dilag also ordered the four accused, as well as the private complainant, to personally appear in court during the arraignment set for 9 a.m. this Friday.

Dilag has also set a hearing for March 22 on the omnibus motion filed by private prosecutors to defer the arraignment of the accused; declare Article V, Paragraph 6 of the Visiting Forces Agreement (VFA) as unconstitutional; issue an alias warrant of arrest against the four accused; and direct the Executive Department through the Department of Foreign Affairs to immediately serve the warrants of arrest to the accused.

In their motion filed on March 17, the complainant’s private lawyers, Evalyn Ursua, Honorato Aquino and Anna Lisa Gonzales, said there is a legal question on "whether the Visiting Forces Agreement has effectively amended our Rules on Criminal Procedure, thereby infringing on the Supreme Court’s exclusive power to promulgate rules of practice and procedure in all courts as provided under the Philippine Constitution."

The prosecution also said that as a result of the US government’s refusal to relinquish custody of the four servicemen to the Philippine government, "the provisions of our Rules of Criminal Procedures have been effectively nullified."

"Moreover, the right of the private complainant, and that of every Filipino who is or may in the future be accused of a crime, to due process and equal protection of the law has been and is being violated," the lawyers said.

In their petitions for review, filed separately before Gonzalez’s office, the four US Marines said that there was no conspiracy and no rape has been committed.

On the other hand, Silkwood and Duplantis said that prosecutors in Olongapo City erred in finding the existence of a conspiracy in the alleged commission of rape.

They claimed that they were together as a unit because they were re-grouping for their return to their ship when the incident occurred.

They also asked the Olongapo City Regional Trial Court to defer the proceedings, while their motions for review before Gonzalez remain to be resolved.

Meanwhile, House Minority Leader Francis Escudero said yesterday Gonzalez was weakening the case against the US Marines.

"By saying that his department would move for dropping the charges against three of the accused, Secretary Gonzalez is undermining the case that is now under the jurisdiction of the court in Olongapo City," he said.

Escudero said Gonzalez should not meddle with the court and should leave the judge alone to decide what to do with the charges against the accused.

Gabriela Rep. Liza Maza added that Gonzalez "is unduly pressuring the court to see the case resolved his way." "The DOJ secretary is disparaging chances for a successful conviction of the US Marines," he said. — Bebot Sison Jr., Jose Rodel Clapano, Jess Diaz