MANILA, Philippines - After submitting affidavits on the killing of transgender Jeffrey “Jennifer” Laude, four US Marines who will stand as witnesses have left the country, according to the Department of Foreign Affairs.
“DFA was not informed by the US side that four witnesses were leaving the country. They are not required to do so,” DFA spokesman Charles Jose said in a text message to reporters.
But the suspect, US Marine Private First Class Joseph Scott Pemberton, should attend the start of the preliminary investigation of the case today in Olongapo City, Jose told a press briefing.
“I think his Filipino legal counsel should advise him to appear for his own sake,” Jose said. “It will be for his own good to appear.”
US officials promised to make the four witnesses available when needed, but said Pemberton’s presence would be up to his lawyers.
“VFA makes suspect available, but attorney decides when suspect appears, waives appearance,” US Ambassador Philip Goldberg tweeted.
It is not clear if Pemberton will show up today for the preliminary investigation.
Last Friday, the DFA and the Office of the Olongapo City Prosecutor delivered to the US embassy in Manila a subpoena for Pemberton and the four US Marines to attend the preliminary investigation.
The US embassy said over the weekend that Pemberton’s attendance would depend on the advice of his lawyers, reportedly from top law firm Angara Abello Concepcion Regala & Cruz law offices.
Justice Secretary Leila de Lima stressed the 19-year-old Pemberton is required to appear at the preliminary investigation and answer the charges against him under Philippine laws.
The embassy said on Sunday the prosecutors had already met with the four witnesses and taken sworn statements from them in accordance with Philippine laws, thus satisfying the requirements of the city prosecutor as well as the “make available” clause in the US-Philippines Visiting Forces Agreement (VFA).
“They have already satisfied the legal requirements. Moreover, US has given assurance that they will make available the witnesses at the trial,” Jose said.
Based on a review and evaluation of the sworn affidavits of the four witnesses, Jose said the prosecutor decided that it was not necessary for them to appear for the preliminary investigation.
“The witnesses are not the accused, they’re not the respondent. So I think they are free. Wala naman hold sa kanila (There is no reason to hold them),” he said.
‘Personal appearance’
At the DOJ, De Lima said Pemberton’s presence is required in today’s preliminary investigation.
“The usual process under the PI (preliminary investigation) is that we insist on personal appearance of the respondent if the hearing is for submission of counter affidavit,” De Lima said. “We see no reason why this case will be an exception to that general rule.”
“There are cases where respondents would try for whatever reason to subscribe their counter-affidavit before another prosecutor or a notary public instead, although that is allowed only for compelling reasons,” De Lima said. “In this case, I see no reason why the respondent would refuse to face the prosecutors.”
The preliminary investigation is scheduled at 2 p.m. today.
She conceded though that the lawyers of Pemberton have the discretion to handle the case the best way they think to benefit their client.
But she stressed the prosecutors would insist on the appearance of Pemberton in the hearings so as to dispel suspicion of special treatment from government.
De Lima pointed out that if Pemberton would insist on not attending the proceedings, the charge against him would be submitted for resolution without his defense.
She also vowed speedy resolution of the murder charge against Pemberton for the killing of Laude last Oct. 11 in Olongapo City.
De Lima said the investigating panel of the Olongapo City prosecutor’s office has committed to expedite the conduct of preliminary investigation.
“My guidance to them is to not allow dilatory maneuvers and to reject unreasonable reasons for postponement of hearings,” she said.
A panel of prosecutors composed of City Prosecutor Emilie Fe delos Santos as presiding prosecutor and Assistant Prosecutors Joel Taliping, Ria Nina Sususeo and Romel Baligod will conduct the preliminary investigation.
“We will decide within 60 days if there is probable cause and to elevate or not the murder case against Pemberton to the Olongapo City Regional Trial Court (RTC) for court proceeding,” Taliping told The STAR.
Premature
De Lima also said it may be premature for the family of Laude – through lawyer Harry Roque – to demand the immediate transfer of custody of Pemberton from the US government to Philippine authorities.
“To insist on custody of Pemberton at this point is premature since it’s still in the PI stage,” she explained.
Under Philippine rules of court, respondents in criminal cases undergoing preliminary investigation are not yet detained until the investigating prosecutors find probable cause and file appropriate case in court.
Only when a trial court issues an arrest warrant can they be arrested and jailed pending trial.
It’s a different case when respondents are arrested upon commission of the crime. They undergo inquest proceedings and would remain in detention until the prosecutors resolve the charges against them.
De Lima also said she would present Laude’s friend “Barbie,” also a transgender, to the Senate foreign relations committee tomorrow upon the request of Sen. Miriam Defensor-Santiago.
Barbie accompanied Laude and Pemberton to the Celzone Lodge after having some drinks at the nearby Ambyanz Disco bar.
Barbie (not his real name), has been placed under the witness protection program of the DOJ. He is considered a key witness in the murder charge.
In her letter to the DOJ chief yesterday, Santiago also sought the appearance of another witness, the room boy at Celzone Lodge who first discovered the dead body of Laude.
“Their testimonies will be absolutely essential for the Senate to carry out the mandate to conduct an inquiry in aid of legislation,” Santiago said.
Meanwhile, Sen. Francis Escudero urged the DFA and the DOJ to “immediately and without delay get in touch with their counterparts and demand the attendance of the four (American) witnesses” in the preliminary investigation.
“Such demand is covered by the VFA which calls not only for respect for law but the obligation to make available the US personnel for investigative or judicial proceedings,” Escudero, who is also a lawyer, said.
“US military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings,” he said, quoting Article V of the VFA.
Escudero also reiterated his call for a review of the VFA “for clearer, stronger and stricter stipulations which are mutually beneficial to both parties in every step of the way.” With Edu Punay, Christina Mendez, Bebot Sison Jr.