The rape case against US Marines Daniel Smith, Chad Carpentier, Keith Silkwood and Dominic Duplantis is being heard by Judge Benjamin Pozon.
Referring to the testimony of Subic Bay Metropolitan Authority (SBMA) bike patrol officer Noel Paule last Friday, Benjamin Formoso, Smith’s lawyer, told The STAR in an interview: "Dinadagdagan nila eh. Kagaya nung ‘tama na, tama…,’ wala naman yun sa sworn statement (They are adding words. Just like, ‘Enough, enough…,’ that’s not in the sworn statement)."
Government and private prosecutors are also presenting testimonial evidence "based on nothing more than hearsay," he added.
Paule, the prosecution’s fifth witness since the marathon trial began last June 2, testified on how he allegedly saw the victim crying in a parking lot near the Telecoms Building at Subic Freeport Zone on the night of the alleged rape.
Paule said he spoke with the alleged victim before taking her to the SBMA Intelligence and Investigation Office.
During cross-examination, Formoso, along with the lawyers of Carpentier, Silkwood and Duplantis, tried to establish that Paule’s version of the complainant’s quotes on the night of the alleged rape differed from those included in sworn statements made before investigating officers the following day.
Paule said the victim uttered the words "Tama na, tama na, pero sige pa rin sila (Enough, enough but they continued)" and "Pag nalaman ito ng mama ko, papatayin niya ako (If my mama learns about this, she will kill me)" when he asked her what had happened.
Defense lawyers showed Paule his sworn statement that did not contain the direct quotes disclosed in his direct testimony in open court.
Other witnesses who took the stand were Tomas Corpus, Gerard Muyot, Joseph Khonghun and Jaime Avila.
They have so far testified on what allegedly occurred from 11 p.m. on Nov. 1, 2005 to 1 a.m. onwards on Nov. 2.
Formoso told The STAR the defense believes that all five witnesses have so far failed to prove that the victim was raped by the four US servicemen.
"No actual rape. No gang rape committed. All hearsay," he said, confident of an acquittal for his client and the rest of the accused.
Formoso said if there was any rape, there should have been violence involved and resistance on the part of the complainant.
"The alleged victim had no bruises, no wounds whatsoever, which means that there was no force or violence exerted against her," he said.
On the other hand, private prosecutor Evalyn Ursua of the Women’s Legal Bureau dismissed Formoso’s statements as "personal conclusions" that may "misinform the public" insofar as the definition of rape is concerned.
"The testimony of the witness on the witness stand is what’s critical," she said. "The real test is the cross-examination, if the witness can withstand it."
Ursua said sworn affidavits do not include everything a witness may say in court because this depends on a number of factors.
"It depends on how exhaustive the investigator is, it depends on the questions," she said. "It’s usual. No questions asked, no answer."
Ursua said Formoso’s idea that rape is committed only with force or intimidation is wrong because there is a much broader definition of the crime under law.
"Rape is committed in several ways," she said.
"It’s not always through use of force or intimidation or violence. Rape can also focus on lack of consent or if it is committed against the will of someone. Well, that’s his conclusion. We haven’t finished yet."
Meanwhile, Formoso said the one-year period during which Smith must be tried in a Philippine court ends 60 days earlier than the privilege enjoyed by his three co-accused because he did not file a Petition for Review before the Department of Justice, resulting in a two-month suspension of judicial proceedings.
Smith is asking Pozon to issue a ruling on the matter.
In a motion for partial reconsideration of the court’s earlier ruling placing at Dec. 27, 2005 the start of the one-year period under the Visiting Forces Agreement for the court to have jurisdiction to try the US servicemen, Smith said the one-year period for him should end earlier.
Formoso said after the case was raffled off to the Olongapo RTC Branch 73, a 60-day suspension of the judicial proceedings began on Jan. 26, 2006 because Duplantis, Carpentier and Silkwood filed a Petition for Review before the Department of Justice on Jan. 17.
The judicial proceedings resumed on March 20, 2005 shortly before the venue of the trial was transferred to the Makati RTC, he added.
Formoso said the court failed to consider that Smith, who is accused of actually raping the victim while his companions allegedly cheered on, did not file a Petition for Review, which means that the judicial proceedings in his case were never suspended.
Based on this argument, the court must issue an order that Smith’s one-year period under the VFA started on Dec. 27, 2005 and should end on the same date this year, he added.
Formoso also raised another argument seeking to set the end of the one-year period earlier, on Nov. 27, 2006.
Formoso said they would invoke Republic Act 8493, the Speedy Trial Act of 1998, which means that the prosecution has to finish and prove their case within 180 days from the first day of the trial, June 2, 2006.
"This (the marathon hearings) is a speedy trial, what else can you call this?" he asked in an interview with The STAR after he filed the motion early yesterday morning.