Pemberton: No murder

MANILA, Philippines - The murder case filed against US Marine Lance Cpl. Joseph Scott Pemberton for the death of a Filipino transgender was “based on nothing but conjectures and speculations” and should be dismissed, his lawyer said in a petition filed yesterday with the Department of Justice (DOJ).

This developed as the Olongapo City court handling the controversial case deferred until Jan. 5 next year its ruling on the Pemberton camp’s petition to suspend hearing.

Through his lawyer Rowena Garcia-Flores, Pemberton asked Justice Secretary Leila de Lima to review the Dec. 15 resolution of a panel of Olongapo City prosecutors chaired by Emilie delos Santos finding probable cause for charging the Marine with murder for the death of Jeffrey “Jennifer” Laude last Oct. 11.

“Not only is the assailed resolution full of logical leaps and unwarranted conclusions, it also disregarded the fundamental principles pertaining to treachery as a qualifying circumstance in the crime of murder,” read the 33-page petition.

Pemberton’s lawyer claimed that there was “no direct evidence to show how the alleged attack was commenced and executed.”

Laude was found dead inside a rented room he shared with Pemberton on the night of Oct. 11 in Olongapo City. The pair had some drinks at a nearby bar before they checked into the Celzone Lodge.

Pemberton reportedly admitted killing Laude to his fellow Marines.

“There was no evidence presented as to the details of the purported assault during the preliminary investigation other than the surmises and conjectures of the supposed witnesses and the baseless conclusions of the (Office of the City Prosecutor) using object and documentary evidence, most of which are even inadmissible,” Pemberton said through his lawyer.

Pemberton’s camp also said there must first be a “deliberate or conscious choice of a means of execution that insures the offender’s safety from retaliatory act” from the victim before an act can be considered murder.

His lawyer also questioned the prosecutors’ claim of cruelty in the commission of the offense.

She pointed out that there is cruelty only when the other injuries or wounds are inflicted deliberately by an offender, which are not necessary for the killing of the victim.

“Further, the victim must be alive when the other injuries or wounds were inflicted,” his lawyer added.

The murder case was filed with the Olongapo City Regional Trial Court Branch 74, which had issued an arrest warrant against Pemberton.

A petition for review in the DOJ, however, is a legal option for the accused in criminal cases. The justice secretary will either affirm or reverse the findings of the prosecutors.

Judge’s inhibition sought

In Olongapo, prosecutors yesterday asked Judge Roline Ginez-Jabalde to inhibit from the murder case.

Private prosecutors led by Harry Roque Jr., counsel of Laude family, said the judge should inhibit considering her link with Flores, Pemberton’s lawyer.

He said Judge Jabalde and Flores were classmates in San Beda law school.

But the camp of the defense countered that the husband of Jabalde and the head of the prosecution panel were also classmates at Manuel L. Quezon University College of Law.

Meanwhile, Jabalde set for resolution on Jan. 5 the motion of Pemberton seeking suspension of proceedings.

Pemberton wanted the court hearings suspended pending resolution of his petition for review in the DOJ.

But prosecutors opposed the plea, arguing that it would just delay the proceedings. They pointed out that the trial of the American serviceman should be completed within one year under the Visiting Forces Agreement or else he would be freed.

The court has also submitted for resolution the other motions of private prosecutors seeking to transfer Pemberton to the city jail and to allow media coverage of the trial.

Public prosecutors, however, did not support such moves by the private lawyers.

Roque and the other prosecution lawyer, Virginia Suarez, expressed belief there is “overwhelming evidence” to convince any judge of the guilt of Pemberton.

Suarez said they are ready to file opposition to the petitions of the Pemberton camp also on Jan. 5.

She said they also want the judge to book Pemberton for arraignment as soon as possible.

Jabalde, in the last hearing, issued a commitment order for the accused to remain in detention at the Mutual Defense Board Security Engagement Facility at Camp Aguinaldo in Quezon City.

Pemberton appeared in court and met the family of Laude for the first time last Friday.

He was in handcuffs and escorted by US and Filipino soldiers. He did not show up in court yesterday.

When news of Laude’s death reached his superiors, Pemberton was held on the amphibious assault vessel USS Peleliu then docked in Subic Bay. Pemberton was among the more than 3,000 US soldiers and sailors who took part in a joint US-Philippine military exercise in Subic Bay.

Pemberton was later transferred to a refurbished and air-conditioned shipping container within the Mutual Defense Board Security Engagement Facility at Camp Aguinaldo.

Custody battle

The US earlier emphasized it would not turn over Pemberton to Philippine authorities, citing provisions of the VFA.

After initially pressing for local custody of the 19-year old Marine, the Department of Foreign Affairs later relented, saying the US position was “not inconsistent” with the VFA.

But Roque said “the court is an independent branch of government and should be the one to decide on the matter of custody of the accused.”

Earlier, US Ambassador Philip Goldberg said they were working out a “common interpretation” of the VFA with Philippine authorities.

Goldberg said there is a need for a mutually acceptable interpretation of some provisions in the VFA to resolve the differences arising from the murder case.

“That (custody issue) is something that has been talked about last few days and I think it is misinterpreted,” Goldberg said in an interview on ANC on Thursday.

“What we are trying to do is to avoid any differences, to try to work together with the Philippine government, with the judicial authorities to make sure that the VFA has a common interpretation and that we move forward to make sure that justice is done in the case,” he said.

Several quarters have condemned the Philippine government’s failure to insist on local custody of Pemberton.

In a statement, the Communist Party of the Philippines said it “joins the Filipino people in condemning the US government and military for rejecting the Philippine government’s request to have custody of US marine serviceman Joseph Scott Pemberton.” It also renewed its call for the abrogation of the VFA.

The CPP also scored the Philippine government for what it described as “torpid” response to the US position and for its refusal to assert full jurisdiction over the murder case. – Bebot Sison Jr.