Criminal intent

It was murder, the National Bureau of Investigation has concluded. The death on Nov. 5 of controversial Mayor Rolando Espinosa of Albuera, Leyte, inside his cell at the Baybay provincial jail was not the result of a shootout with police officers; rather, it was a “rubout,” the now familiar term for a police execution. (Another inmate, Raul Yap, was also executed.) But, astonishingly, President Duterte is having none of it.

“I will not allow these guys to go to prison maski sabihin ng NBI (even if the NBI says it’s) murder,” the President said at an event in Mandaluyong City on Wednesday. “Tutal, under ko man ang NBI. Under ko rin iyan, ang Department of Justice (Anyway, the NBI is under me. The Department of Justice is under me).”

Then he added: “But I do not interfere.”

The President has a curious definition of noninterference, because later on Wednesday, at the turnover ceremony welcoming the new Armed Forces chief of staff, he repeated his disbelief in, or disparagement of, the just-concluded NBI investigation.

“Wala naman kayong witness diyan [na] nagsabi na nakita na (You don’t have a witness there who said it was a rubout). Come up with something good and I will have it out.” The Department of Justice has also stirred itself to conduct a separate investigation.

But Mr. Duterte is misinformed.

The NBI investigation did not only include witnesses; it also included both forensic science and a compelling and credible narration of facts.

First, the search warrant that the police raiding party used as an excuse to enter the provincial jail was obtained under false pretenses. Self-claimed witness Paul Olendan said that on Oct. 28 he had seen Yap repacking “shabu” inside the cell while Espinosa stood guard with a gun. This was the testimony a regional trial court used as basis for issuing the search warrant. But the NBI was able to establish that in fact Olendan was “in Tacloban, 130 kilometers away from Baybay,” NBI spokesperson Ferdinand Lavin said.

Second, CCTV footage from a government office near the provincial jail showed that the raiding party from the regional office of the Philippine National Police’s Criminal Investigation and Detection Group entered the jail at 3:05 a.m., not, as police officials testifying at the Senate said, at 4:10 a.m. This explains why the Scene of the Crime Operatives team was called to the jail at 3:49 a.m.—the two inmates had already been killed. At the Senate, the same officials were hard-pressed to explain why, if they said the raiding team entered the premises at 4:10 a.m., the team called in the Soco at an earlier time.

Third, witnesses at the killing site talked to NBI agents. One said he had seen policemen talking to Yap, asking him for his name and case, before he was killed. Another overheard Espinosa telling or pleading with the raiding officers not to plant evidence on him (“Wag nyo akong lagyan”). A third witness told the NBI that he had seen a gloves-wearing policeman enter Espinosa’s cell with a gun; when the policeman stepped back out, the gun was no longer with him.

Fourth, an examination of the cell where the inmates died showed that there were no signs that gunfire was aimed at the door. As the NBI spokesperson pointed out, if the incident was in fact a shootout, as claimed by the police, then it would stand to reason that the inmates were firing at the policemen at the door. “This is a premeditated killing,” Lavin said.

Fifth, the NBI was able to establish that the firing started when a police officer gave a thumbs-down sign.

“The forensic team did their best to recreate the crime scene. Our forensic findings are consistent with the testimonial evidence,” Lavin said. He added: “We believe there is criminal intent. There was community of purpose, there was mission in their action, there was conspiracy.”

In the face of such evidence, we cannot understand why the President continues to either stand by the presumption of regularity in the conduct of the police raid or, as he did on Wednesday, all but promised to obstruct justice. This, quite literally, will allow a favored few to get away with murder.