Smith hopeful SC will clear him

Marine Lance Corporal Daniel Smith is optimistic that the Supreme Court will reverse his conviction for rape, his spiritual adviser Fr. James Reuter, S.J., said yesterday.

"He has real high hopes that the decision will be reversed. He’s taking everything that is happening to him very peacefully,’’ Reuter said in a phone interview.

Reuter said Smith was not bothered by the move of the camp of "Nicole" to have his transfer to the US Embassy declared illegal. The 23-year-old Filipina rape victim is publicly known as "Nicole.’’

On Dec. 29, invoking a legal opinion from the Department of Justice on an agreement on custodial rights signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney, Interior and Local Government Secretary Ronaldo Puno ordered the Makati City jail to turn over Smith to the US Embassy.

The Court of Appeals upheld on Jan. 3 the transfer of Smith but also stressed that Makati City Judge Benjamin Pozon did the right thing when he ordered the detention of the convicted rapist at the city jail. It was Pozon who convicted Smith for the rape of "Nicole" in Subic in 2005.

"The Visiting Forces Agreement, as an international treaty, is legal and valid. We are glad that the CA settled the custody issue,’’ Reuter said.

He said he has been visiting Smith more often at the embassy.

Smith, Reuter said, has had bouts of depression but is always instantly buoyed by the letters of support from people who believe in his innocence.

"He’s glad that there’s a growing number of people who believe in him, who cheer him up,’’ Reuter said.

"Even if he’s suffering, I think he’s taking all this peacefully. I always tell him God will never let anything happen to you unless He has some reasons and Smith accepts that 100 percent,’’ Reuter said.

He said the conditions at the US Embassy are better. Smith has a small room with a bed and a little table where he places his laptop computer. Smith occasionally surfs the Internet.

Reuter said Smith now stays at the room previously occupied by Marine officer Chad Carpentier, who was acquitted along with fellow Marines Dominic Duplantis and James Silkwood.

"He’s a little bit lonely because he misses his friends, Carpentier, Silkwood and Duplantis,’’ Reuter said.

He said he recently blessed the room because of reported "ghosts.’’

"But that was Chad who believes there were ghosts in that room. Smith isn’t really bothered by that, still I blessed the room. I don’t believe in ghosts. When Chad was here, he used to complain about seeing and hearing things, which was corroborated by guards and staff in the embassy,’’ Reuter said.

He said Smith’s parents postponed their planned visit for fear of the media and the mob.

"They saw the screaming crowd during the trial and saw how Smith was dragged. They don’t want to experience that here,’’ Reuter said.

He said Smith was also traumatized by the media frenzy and had refused to be interviewed and photographed because he felt "they were just using him for publicity.’’

In an earlier interview with GMA-7, Reuter said Carpentier was demoted by the US court martial but details on the proceedings were unavailable.

He said they were informed that only Carpentier was made to face the proceedings because he was the leader of the platoon to which Smith, Lance Corporals Silkwood and Duplantis belonged. Silkwood and Duplantis have since been reassigned to other units.

Meanwhile, Presidential Legal Counsel Sergio Apostol questioned the role of private lawyers in the battle over Smith’s custody.

Apostol said private lawyers are only allowed to represent the civil aspect of a criminal case.

"A private prosecutor can only intervene in a criminal prosecution when it involves civil liabilities. Custody does not involve civil aspect, they have no personality to appear,’’ Apostol told reporters during the weekly Kapihan sa Sulo Hotel forum in Quezon City.

He said he would ask the solicitor general to raise the matter before the Supreme Court.

Apostol was referring to lawyer Evalyn Ursua’s representing Nicole before the Court of Appeals regarding the petition for Smith’s transfer to the US Embassy.

Ursua has accused Apostol and other top government officials of conspiring to allow a convicted rapist to escape from prison.

With Smith already under US custody, the CA declared the petition moot.

At the same forum, Foreign Affairs Assistant Secretary for Legal Affairs Victor Garcia reiterated that Smith’s transfer is in accordance with the VFA.

He said the confusion centered on the interpretation of custody, sovereignty and custody over the case.

"When you enter into a treaty you limit or restrict your sovereignty. An example is the VFA, where we restricted our sovereignty in the application of Philippine law,’’ he said.

Citing provisions of the Revised Penal Code, Garcia said, "Except in cases of treaties and laws of preferential application the provisions of this law apply to all crimes committed in the Philippines.’’

But he stressed that the DFA is firm on keeping Smith in a Philippine jail if the Supreme Court would uphold his conviction.

"Our position is that once this matter has reached the Supreme Court and there is a final conviction of his crime, he (Smith) has to serve his sentence in the Philippines,’’ Garcia said. — Patricia Esteves, Perseus Echeminada