Double whammy

The people of the Philippines actually took a hit twice when the Olongapo court excluded several items of evidence offered by the public prosecutor in the trial of US Marine Joseph Scott Pemberton.

Not only does it weaken the ammunition available to the Filipino prosecutors. It also delays the trial, and brings it perilously close to what is effectively a one-year deadline for Philippine courts to conclude the trial.

In October 2014, Filipino transgender woman Jennifer Laude was found dead in a motel room in Olongapo shortly after a man, later identified as Private 1st Class Pemberton, was seen leaving. In December 2014, a murder case was filed against him at the Regional Trial Court in Olongapo.

Recently, the court excluded 20 items of evidence offered by Chief City Prosecutor Emilie Fe de los Santos. She has of course asked the court to reconsider its order, but this also stalls the case further.

The wheels of justice turn ever so slowly in this country, but this delay is particularly worrisome because the Visiting Forces Agreement says that after one year after the start of the trial, the United States is freed from its duty of judicial cooperation with the Philippines on this case. The VFA says: “In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph,” referring to the US commitment to make Pemberton “available” to Philippine authorities “without delay.” That one-year period began to run from the filing of the criminal charge in December 2014. The prosecution has barely four months before it lapses.

For sure, it can be argued that the clause applies only when the accused is in US custody. Pemberton is detained in Camp Aguinaldo, guarded jointly by Filipino and American soldiers in what appears to be joint custody

between the two countries. But even the validity of joint custody is itself debatable.

Still and all, this doesn’t mean the prosecution can

dilly-dally. The case brings together the voices of the two most articulate constituencies in Philippine political discourse today: the anticolonial and the gender activists, in the context of a gruesome murder. If a headline-grabber that catches the full range of news consumers, from the ideologues to the tabloid readers, cannot nudge a Philippine court to move faster, what else can?

Thus far, the prosecution has established how Laude died (from “asphyxia by drowning and strangulation,” said the Philippine National Police medico-legal officer and pathologist), and her head and neck wounds indicate that she could’ve been mauled or punched before her death.

The prosecution has also placed Pemberton as Laude’s companion during that fatal night. Two witnesses,

“Barbie,” Laude’s companion and herself a transgender woman, and a motel bellhop identified Pemberton as the man who checked into the motel with Laude.

The Laude family’s lead counsel, private prosecutor

Harry Roque Jr., finds the motive in Pemberton’s discovery that Laude was a transgender woman. Pemberton confided to his “liberty” companion, a fellow Marine, after returning to their ship: “I think I may have killed a he or a she.” The witness, asked why he took the stand against his fellow soldier, invoked the Marine’s duty to always tell the truth.

On the other hand, PNP investigators have examined the fingerprints on the condom wrapper, and found that those were not Pemberton’s. US medical officers also testified on their examination of Pemberton, who showed “defensive wounds.” They also couldn’t confirm whether Laude had been sexually assaulted or had engaged in consensual sex.

Meanwhile, the defense is reportedly considering a “demurrer to the evidence,” which is to say that it thinks the prosecution has presented such a weak case that the defense sees no need to present its own evidence. It will

instead “demur” and ask the court to simply throw out the case. That remains to be seen.

Filipinos must look at the brighter side of things, and revel in small victories. There was a time when accused US servicemen were spirited out of the country in wanton disregard of the Philippines’ claim to justice. Today Pemberton is on trial in a Philippine court, and behind bars in a Philippine camp. His fellow American soldier has taken the stand as a prosecution witness. US military and medical experts have been made to testify by the Filipino prosecutors. The Department of Justice has stood pat on the decision to indict Pemberton for murder—and even the Filipino public prosecutor’s pathetic attempt to water down the charge to mere homicide has been roundly rejected by the Laude family.