A US Navy investigator testified for the prosecution on Monday but was barred from appearing again yesterday, the prosecutors said, and the judge in the trial ordered the embassy to explain why.
US Embassy officials could not immediately be reached for comment as to why the investigator failed to show up.
Prosecutors allege that Lance Cpl. Smith raped a 22-year-old Filipino woman on Nov. 1, while the others — Lance Cpl. Keith Silkwood, Lance Cpl. Dominic Duplantis and Staff Sgt. Chad Carpentier — cheered him on.
The rape charges are punishable by up to 40 years in jail. The Marines have refused to answer the charges and the judge entered a plea of innocent for them.
On Monday, US Navy Criminal Investigation Service agent Ronald Veltz testified at the Makati City regional trial court that the driver of a van in which the woman was allegedly raped told him the servicemen were indeed with the woman — identified only as "Nicole" — on that night.
Veltz, a prosecution witness, said that Filipino driver Timoteo Soriano drew a sketch showing Smith and the woman seated at the back of the van.
Veltz was scheduled to be cross-examined yesterday and a second Navy investigator was expected to testify, but government prosecutor Emilie de los Santos said the US Embassy informed them they had no clearance from Washington to allow the investigators to appear.
It wasn’t clear why Veltz was allowed to testify on Monday.
"They are delaying the proceedings in this case," De los Santos told reporters.
The session adjourned after Judge Benjamin Pozon ordered the US Embassy to explain why it was invoking diplomatic immunity for the Navy investigators.
"We submit that the US government is in violation of its commitment under the Visiting Forces Agreement. This is an attempt to obstruct justice," said Evalyn Ursua, a lawyer for the woman.
"This constitutes an affront to the powers of this court and the sovereignty of this country," she said.
The testimony of the NCIS agents, Ursua earlier revealed, seek to prove that there was sexual intercourse between Smith and the victim though the American soldier claims it was consensual.
"They’re obviously taking care of their own, protecting its marines. As we have said before, this process is subject to the sovereign will of the US government," Ursua said.
According to her, invoking diplomatic immunity shows that the VFA is a stumbling block to the criminal justice system.
The 1999 agreement governs the conduct of US military exercises in the country.
The embassy has refused to turn over the Marines to Philippine police, citing a provision under the agreement that lets US authorities retain custody of servicemen facing criminal cases.
The Marines had finished counterterrorism maneuvers with Filipino troops when the alleged rape occurred at the former US Subic Bay Naval base near Olongapo city, west of Manila.
The trial has stirred emotions in the former American colony, with a handful of anti-US protesters accompanying the proceedings. — AFP, Michael Punongbayan