DOJ: Reverse acquittal and convict De Lima

A panel of 11 topnotch prosecutors of the Department of Justice (DOJ) asked Judge Abraham Joseph Alcantara of the Regional Trial Court (RTC) of Muntinlupa City (Branch 204), via a motion for reconsideration (MR), to set aside his decision acquitting former senator Leila de Lima in one of the two remaining drug cases against her (and Ronnie Dayan) and to render a new one convicting her.

I PERUSED THE 91-PAGE MR. Though well-written, well-reasoned, and cerebral, it is not enough, IMHO, to convince the judge to change his mind. He had already carefully weighed the evidence of the prosecution and ruled that the recantation of former deputy director of the National Bureau of Investigation (NBI) Rafael Ragos had created “reasonable doubt” on the guilt of the accused.

To secure a conviction in a criminal case, prosecutors are required by law to present evidence showing the guilt of the accused with “moral certainty” and/or “beyond reasonable doubt.” The chain of evidence must be so airtight and so strong to produce in an unprejudiced mind the moral certainty that a crime has been committed and that the accused is the perpetrator thereof. Absent such moral certainty, a court has no choice but to clear the accused.

In the present case, Judge Alcantara was convinced that the recantation of Ragos created a reasonable doubt on De Lima’s participation in the drug trafficking that was proven to exist in the National Bilibid Prison. With the hobbled evidence of Ragos, the chain of circumstances showing guilt was broken, thereby entitling De Lima (and Dayan) to an acquittal based on reasonable doubt, not necessarily on lack of guilt.

In short, while the charge of drug trafficking may have been proven, the participation of De Lima (and Dayan) was not proven with moral certainty. Thus, evidence at hand did not pass the strict standard of “guilt beyond reasonable doubt.” The recantation created a doubt on culpability, not a certainty of innocence.

Imagine an immaculate piece of white paper. Then, splatter red ink on it. It is quite difficult to erase the red ink in the imagined white paper. Try it. In a similar way, once an unprejudiced mind is splattered with doubt, it is difficult to erase the doubt. The more one thinks of the doubt, the more it lingers.

THE PROSECUTORS, ON THE OTHER HAND, ARGUED in their MR that the Supreme Court has repeatedly ruled in a “plethora of cases” that “recanted testimony is often regarded as exceedingly unreliable as compared to the original testimony which was made by the witness under oath in the presence of the judge and with the opportunity to cross-examine.”

The prosecutors added that “other than bare allegations, the defense was not able to establish the same and was even rebutted by the evidence on record. As a matter of fact, Ragos was not even able to answer questions during his cross-examination on his recantation with respect to how he was allegedly coerced into coming up with his statements and the information he revealed during his original testimony.”

While he claimed being coerced into giving his original testimony and admitted that coercion was a crime, he never reported it though he was under duty to do so as an NBI deputy director, no less. It was only after four long years that he suddenly executed an affidavit renouncing his prior testimony directly linking the accused to the proven crime of drug trafficking. The prosecutors cited several Supreme Court cases holding that Ragos’ “more than four years of earsplitting silence” before singing a new “song of recantation” is unworthy of belief.

Upon hearing of the prosecution’s plan to file an MR, De Lima’s camp immediately asserted the well-known adage that an “acquittal is final and unappealable.” However, I think that the prosecutors are betting on the exception to this adage, that is, an acquittal rendered with grave abuse of discretion is void and legally deemed to be nonexistent.

THEY PROBABLY BELIEVE THEY HAVE EVERYTHING TO GAIN by filing the MR. If the RTC grants it (which IMHO is unlikely), they attain their prayer. And if the RTC denies it, the matter could be corrected by a petition of certiorari in the Court of Appeal (CA) or even in the Supreme Court.

If a petition for certiorari is filed, the prosecutors would find a formidable ally in the Office of the Solicitor General (OSG) which under the law would be replacing them as counsel for the “People.” Note that Solicitor General Menardo Guevarra was the secretary of justice during the prosecution of De Lima in the RTC.

An interesting question is whether De Lima — assuming her petition for bail would be granted in her third and remaining drug case in the Muntinlupa RTC — would be released from detention while the MR and later, if ever, while the certiorari petition is pending in the higher courts. The answer deserves a future column, preferably after Judge Alcantara has ruled on the MR, and after the petition for certiorari, if needed, has been filed.

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