Tuesday, January 16, 2007

Has Daniel Smith Lost The Presumption of Innocence?

MANY PEOPLE SEEM TO THINK SO, at least ever since Makati Regional Trial Court Judge Benjamin Pozon decided that U.S. Marine Lance Corporal Daniel Smith was "guilty of rape beyond a reasonable doubt" last December 4, 2006, whilst acquitting three other US military personnel charged with conspiracy to commit the same crime on November 1, 2005 in Subic Bay, Zambales.

BUT THEY WOULD BE WRONG -- for in every moral and legal sense, Daniel Smith has most certainly NOT lost the "Presumption of Innocence" at this stage in the Philippine Judicial Proceedings against him. The 1987 Bill of Rights in the Philippine Constitution states--
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.
EVEN IF THE RTC has already rendered its verdict through Judge Pozon, this is only the first of three Verdicts of Guilt required for a final and executory Sentence of Conviction. The Trial Court's verdict must be concurred in by both the Court of Appeals and the Supreme Court by verdicts requiring the same quantum of evidence and moral certainty and with greater powers of collegial discernment and deliberation than even at the level of the trial judge. But the common and substantial point of each judicial proceeding--at RTC, CA and SC--is to determine if the Prosecution has testimony and evidence to establish guilt beyond a reasonable doubt. Inasmuch as a Decision of the judiciary becomes a part of the law of the land, this proceedure is very similar in spirit and substance as the manner by which a bill becomes a law with the concurrence of both Houses of the Congress. Likewise, every sentence of conviction must be concurred in by the three Courts of the Judiciary-- the RTC, the CA and the SC.

NO JURY SYSTEM IN THE PHILIPPINES In a concrete way, the accused's right to be presumed innocent is manifested by the fact that the burden of proving guilt beyond a reasonable doubt rests with the Prosecution. Perhaps because there is no jury system in place, and the fate of the criminally accused rests in the hands of appointed Judges, such burden of proof never shifts from the Prosecution to the Defense in all Philippine criminal proceedings. Thus, a final and executory sentence of conviction in a capital case requires three successive verdicts of "Guilty beyond a reasonable doubt" by the Regional Trial Court (RTC), the Court of Appeals and the Supreme Court.

THE DEFINITIVE CASE AND PONENCIA on the Presumption of Innocence in the Philippine jurisdiction is said to be that of Associate Justice Enrique M. Fernando, in People v. Dramayo (42 SCRA 59) --
"It is to be admitted that the starting point is the presumption of innocence. So it must be, according to the Constitution. That is a right safeguarded both appellants. Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by person on trial under such an exacting test could sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty. So is has been held from the 1903 decision of United States v. Reyes. United States v. Lasada decided in 1910, yields this excert: 'By reasonable doubt is not meant that which of possibility may arise, but it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense.'
The United States Constitution contains features in its Bill of Rights that are alien to the experience of Filipinos in the Archipelago, but which are taken for granted by U.S. citizens. Noteworthy among these is "trial by a jury of one's peers" and some others...
Fifth Amendment - Trial and Punishment, Compensation for Takings. Ratified December 15, 1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment - Right to Speedy Trial, Confrontation of Witnesses. Ratified December 15, 1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Trial by Jury is not used in the Philippine jurisdiction. Instead the fate of criminally accused persons rests in the hands of unelected Judges, who conduct trials much as US Courts do, but minus the Jury. Thus, US Marine Lance Corporal Daniel Smith has been found guilty of rape by Judge Benjamin Pozon of the Makati Regional Trial Court (RTC); if affirmed by the Court of Appeals and the Supreme Court, this verdict will become a final and executory "Sentence of Conviction" carrying with it the punishment of life imprisonment (reclusion perpetua).

Under the Visiting Forces Agreement the US Government clearly "surrenders" the normal Constitutional rights of American citizens accused of crimes in the Philippines and agrees that they be tried under Philippine Law. The US recognizes Philippine jurisdiction over such cases, but maintains custody of its personnel until completion of all judicial proceedings under this agreement.

VFA Section 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States 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 relating to the offense with which the person has been charged in extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.
It is of course easy to ignore the fact that in signing the VFA the United States explicitly recognizes Philippine jurisdiction, to the extent that even the Constitutional right to a JURY trial of its citizens serving under the VFA is apparently surrendered. Such was the case with Daniel Smith, yet we do not have American nationalists tearing their garments crying out for the loss or insult to American sovereignty. In other words, it is most inaccurate to portray the VFA as "one-sided". There is clearly a give and take on these matters.

Isagani Cruz sounds a lot like Renato Constantino in Surrender of Sovereignty -- a column article that could be a classic in the growing genre of victimhood-liberation writings spawned by the Subic Bay Rape Case. Early dominated by clever Lynch Mob instigators like Rina Jimenez David and Conrado de Quiros, the field is being discovered by a broad spectrum of pundits, like blawgers, Rachel Khan and Marichu Lambino, who are producing rich variations on several themes. But here is Isagani Cruz's rendition--
"As regards the question of whether an international agreement may be invalidated by the courts, suffice it to say that the Constitution authorizes the nullification of a treaty not only when it conflicts with the Constitution but also when it runs counter to an act of Congress.”

If the question had been raised, or if raised had been considered by the Court of Appeals, it would have had to follow the above decisions of the Supreme Court. Consequently, it would have upheld the position taken by Judge Pozon in retaining Smith in the custody of Philippine authorities as required by our own laws. That would have honored and enforced our sovereignty, without more.

There would then have been no necessity for the extended opinion written by Justice Apolonio D. Bruselas Jr. that, as it turned out, was all wasted effort because he said in the end that the petition did not have to be decided for having become moot. He had struck mightily with his right arm but surrendered meekly with his left.

The ponencia had been reduced to an academic lesson on how to interpret the law correctly but without antagonizing President Arroyo and her American superiors."

How disingenuous of a former Justice of the Supreme Court now newspaper pundit, Isagani Cruz, not to mention the famous case of Bayan v. Zamora in which the Supreme Court already dealt with the Constitutionality of the Visiting Forces Agreement, affirming the President's ratification of the VFA and the concurrence of the Senate. There is no confusion in the Supreme Court's historic decision on the Constitutionality of the VFA, and no matter how Isagani Cruz and others like him try, they cannot raise even the shadow of a doubt in the minds of Filipinos and Americans of the mutual interest and benefit derived therefrom. Even Nicole herself has to agree that were it not for the Visiting Forces Agreement, her case would probably be in the same state as the estimated 3,000 other Pinays raped by Pinoys since 1 November 2005 -- nowhere.


ricelander said...

Will anyone of them ever entertain the idea that maybe Nicole was lying and Smith was telling the truth? Nah, that's heresy worthy of being burned at the stake! Judge Pozon said so-- he's God.

manuelbuencamino said...


The trial is over. Let us not retry Smith again, The presumption of innocence is not there anymore. Pozon rendered his decision. It is presumed correct and enforceable unless otherwise overturned on appeal.

That's why the next step is to appeal the verdict. it is meant to review the basis of Pozon's decision, not to retry the case as if it were being heard for the first time. The appeals process reviews, it does not retry.

This is the way it goes :
1. Trial stage is about the defendant being guilty or not guilty beyond reasonable doubt. In the trial stage, the prosecution had to prove Nicole was telling the truth.

2. Appeals stage is about the trial, whether or not Pozon's judgement was correct. The burden is on Smith's lawyers - to prove that Pozon was wrong to believe Nicole. If Smith wants to submit new evidence during appeal, he must give a pretty damn good reason. In short, Smith is not presumed innocent anymore.

Notice how the burden has shifted from the accuser to the convict?

Smith does not have to be pronounced guilty three times. Smith has to be pronounced guilty only once. After that higher courts have to pronounce Pozon wrong.

That's a lot different from rendering three guilty verdicts - a very loose and misleading interpretation of the process.


Smith was found guilty beyond reasonable doubt. He has to commit heresy in order to save himself from being burned at the stake. Let's wait for the appeals process to end. In the meantime, you will have to entertain yourself.

Amadeo said...

In many countries belonging to the Anglo-Saxon legal tradition, the Principle of Presumption of Innocence is phrased such that "the accused is presumed to be innocent until it has been declared guilty by a court". This abbreviated form neglects the point that a person may continue to appeal a decision, and will be presumed innocent until a final decision is made. Therefore people who have been found guilty in lower courts of law, but have pending appeals, cannot have their citizen's rights (such as to vote and to be elected) stripped nor can they be permanently removed from their offices, but merely suspended.

Now, the question is: Is presumption of innocence part of one’s citizen’s rights?

My scanty readings would appear to conclude that it is indeed part of one’s citizen’s rights, if the accused is a citizen.

So what applies to an accused who is a foreigner?

Rizalist said...

If Daniel Smith has indeed lost the presumption of innocence, it means that in the appeals the burden of proving him innocent has shifted to the Defense. Have you ever heard of such a thing happening in the Philippines? Doesn't happen! Ever. That is because our system of justice works like the Congress works to pass a bill! This is not a minor point. Most of the Media and the Public are guilty of RASH JUDGMENT. He can be acquitted at any stage of the appeal, just like any law must have concurrence of house and senate, so too with RTC, CA and SC. In exactly the same "separate" way. We have no Jury system, but a Jury of Judges! The Jury is still out.

Jego said...

Im going with MB's interpretation on this one, Rizalist. It's not about Smith's presumption of innocence anymore. The appeals process is about the assumption that Puzon's decision is correct. The burden of proof has shifted to the Defense to prove that the decision is wrong. Since the assumption is Puzon's decision is correct, then Smith is not presumed innocent anymore. He can be acquitted at any time during the process only if the Defense satisfies the courts that the decision is wrong.

The comparison with the legislative process doesnt apply since there is no presumption of anything in crafting laws.

Rizalist said...

It's not just a matter of opinion or some legal nicety. This goes to the heart of how we understand our Justice System works. Fact of the matter is, even though the appeals and SC process are not "trials" in form, the burden of proof has NOT shifted to the Defense. In fact, if you read the passage from People vs. Dramayo, the Defense can remain completely silent throughout the appeals process and the Courts still have to concur with Pozon's findings based purely on the Prosecution's evidence.

It should disturb people that they are wrong on this important point of principle because it actually affects what they say and write about this case.

Ask any lawyer: Has Daniel Smith lost the presumption of innocence?

It's important to know the CORRECT ANSWER to this question.

Rizalist said...

In some American states, an accused IS considered to have lost the presumption of innocence after trial by JURY, in which case the burden of proof does shift to the Defense. But the simple way to understand this is a matter of DUE PROCESS. There must be three concurring findings of guilt beyond a reasonable doubt. Pozon's Ruling is merely the FIRST such verdicts. But unless the CA and SC find exactly the same guilt beyond a reasonable doubt,
accused will be acquitted. Although they will not rehash the Trial, just as the Senate does not necessarily rehash House investigations or public hearings into a bill, both the CA and SC must re-examine all the Prosecution's evidence and the lower court's procedures and conclusions. Note also that at the CA level, a body of 3 judges must rule unanimously to concur in RTC's ruling. If not a three out of five majority of the en banc must do so, otherwise accused is acquitted. The Supreme Court must also basically rule as a collegial body upon guilt beyond a reasonable doubt before a Sentence of Conviction becomes final and executory.

It is fundamental to our system, because it does not use a Jury of Peers, that it uses a multi-level Court, with a "jury of Judges" that in effect makes the decisons of "the Court."

cvj said...

DJB, as i mentioned over at Ellen's blog, there is a distinction between the presumption of innocence and burden of proof. The loss of presumption of innocence upon trial at first instance pending appeal seems to vary from country to country. However, the burden of proof doesn't shift during appeal. So your sentence: "If Daniel Smith has indeed lost the presumption of innocence, it means that in the appeals the burden of proving him innocent has shifted to the Defense." does not necessarily follow.

manuelbuencamino said...


Your analogy is wrong. Concurrence by House and Senate is a constitutional requirement or prerequisite. An appeals procedure is not. An appeal is not obligatory on the part of the convict. And an RTC judge does not have to send his decision up to a higher court for confirmation.

It is the convict who appeals his conviction. And he is given a time period to file his appeal after which he loses his right to appeal. Doesn’t that tell you anything?

“There must be three concurring findings beyond a reasonable doubt”?

DJ, are you suggesting that all RTC convictions should be automatically reviewed by the CA and then the SC before a conviction can stand?

So how many extra CA divisions and how many extra SC justices do you think we are going to need in order to handle the caseload that will result from your “three comcurrent findings” theory?

It’s called Court of Appeals not Court of Confirmation or Concurrence because an RTC conviction stands unless otherwise overturned by a higher court.

Daniel Smith's conviction stands unless and until it is overturned by a higher court. Let's wait for the appeals courts to decide. In the meantime, let's give the RTC due respect.

Rizalist said...

Every capital crime must be tried in an RTC, affirmed by the CA and automatically reviewed by the Supreme Court. No appeal is required. The conviction by RTC is not final and executory, so it is wrong to say it stands "until" because the right statement is, it does not stand UNLESS concurrence is given.

Deciding whether or not Daniel Smith has indeed lost the presumption of innocence in our Justice System is, however, a moral problem with political implications.

I assert that people who don't see the importantce of this question and think that he HAS lost that right to be presumed innocent even upon appeal and Supreme Court review, tend to write and say things they otherwise would not if they were convinced otherwise about Daniel Smith's juridical status before the Courts.

I think every intelligent Filipino owes it to himself to understand this question, because it applies not only to Daniel Smith, but to every criminally accused person, like our friend, Ellen Tordesillas, or Ricky Carandang, should they be found guilty of libel.

It is a basic matter of Civics 101 though for this very fundamental principle to be more commonly understood. Our justice system would not make sense to me any more if we saw the Appeals process as some kind of afterthought to tidy up some small details or formalities.

But ask yourself this, why is it that there are progressively more Judges involved at each stage, (5 in the CA, 15 in the SC), studying, deliberating and deciding the case, usually for a far longer time than the trial?

I think it has something to do with the principle that we would rather a hundred guilty men go scot free than a single innocent man suffer unjustly!

And so, the life imprisonment of a man ought not to be in the hands of Pozon alone! And it surely is not!

Rizalist said...

The more one thinks about it, the more absurd it is to think that the guilt of the accused is decided SOLELY by the Trial Judge, that his decision must be "overturned" and not "affirmed". In the CA, there has to be a vote of three judges for the RTC verdict to be affirmed, not just one judge. And in the Supreme Court, that august collegial body of justices must concur in the RTC and CA rulings in ALL their details. How can Pozon's "decision" outweight them all?? Why all the bother if it did?

Jego said...

Very enlightening, Rizalist. Your points certainly should be part of every watercooler discussion as indeed the presumption of innocence is an important question. I'll be keeping tabs on what the blawgers say about this issue.

Tom said...

I have a sneaking suspicion that some bloggers' opinion on this matter is somewhat affected by who the accused is. I am personally hoping that Arroyo's lawsuit against the journalists does not prosper. But if it, God forbid, does and he prevails, and the journalists are found guilty, it would be interesting to see how the regulars in ET's blog would react to the same question.

engineerOFW said...

Based on (1) Smith admitted to sexual penetration and (2) noting Nicole was extremely drunk at the moment of penetration, Pozon concluded that Nicole was unable to signify whether or not she consenteded, and Pozon concluded that Smith committed rape.

My expectation is that Court of Appeals will note that for hours before they entered the van, Nicole had been agreeing to the hugging and kissing and groping and sexual signals. Nicole had been giving consent for many hours before the penetration; there is no evidence that she withdrew her consent for sexual penetration... my expectation is that the PHilippine court of Appeals will reverse Pozon's decision.