Accused US Marine a no-show at probe

OLONGAPO CITY, Philippines – US Marine Private First Class Joseph Scott Pemberton, the suspect in the killing of Filipino transgender Jeffrey “Jennifer” Laude, skipped yesterday’s preliminary investigation of the murder case.

Pemberton was instead represented by his lawyer Rowena Flores, who argued the earlier subpoena issued by the investigating prosecutor did not compel the appearance of the American serviceman.

She said the subpoena merely required Pemberton to submit a counter-affidavit by Oct. 27.

“I would like to avail of the 10 days to study the case and the various documents submitted by the complainant,” she added.

Flores is affiliated with the Angara Abello Concepcion Regala & Cruz Law office, but said she is representing the US serviceman in her personal capacity.

Flores did not guarantee the presence of Pemberton in the next hearing, saying they have yet to decide if he will submit his counter-affidavit.

Later during the hearing, however, Olongapo City chief prosecutor Emilie Fe delos Santos told Flores to bring Pemberton to the scheduled hearing on Oct. 27.

“I’m asking you to make him appear before us,” Delos Santos told Flores, who repeatedly told the prosecutors that she will have to confer first with Pemberton.

“The attendance of your Marine will give us an example on the willingness on the part of the US to comply with the VFA (Visiting Forces Agreement),” Delos Santos told Flores.

Delos Santos said Pemberton may waive his right to submit his counter-affidavit, noting that the current process is simply a determination if there is probable cause that would warrant the filing of the case before the court.

“We will just validate (the evidence) and then we will decide,” she said.

Delos Santos said rules usually prescribe a 60-day period for the prosecutor to finish the preliminary investigation, but added that this is subject to the agreement of the parties.

“We don’t have to make haste,” she said, noting that some evidence – particularly those involved in forensics – may take time to process.

Apart from the next hearing on the preliminary investigation, Delos Santos and the parties also agreed on the ocular inspection on Nov. 5 of the bar where Pemberton and Laude supposedly met, and the lodge where the victim’s body was found on Oct. 11.

The prosecutors said around 15 pieces of evidence, including testimonies and forensic documents, were presented during the hearing.

Among them were the sworn affidavits of four US servicemen, who have since left the country.

Representatives from the US government attended the hearing to ensure the four servicemen would be available should the case be filed in court and if they need to be present during court proceedings.

The four US Marines sought by prosecutors were described as witnesses. They submitted their statements to the prosecution panel before they left the country.

Also present during the hearing was witness “Barbie,” who reportedly accompanied Laude and Pemberton to the lodge where the victim was found dead. She is currently under the witness protection program of the government.

Meanwhile, Delos Santos refrained from addressing the issue of custody during the hearing, saying this is above the level of competence of the prosecutors as it concerns an international agreement.

“What the prosecution will do is to finish the criminal aspect,” she said.

Delos Santos reiterated her statement amid repeated calls of lawyer Harry Roque, who represents the Laude family, that the government should take custody of Pemberton.

“The complainants believe that there is a continuing violation of the VFA, which says that the Philippines should have custody of the accused,” Roque said.

Roque said they are planning to file a case of dereliction of duty against the government for its failure to take custody of Pemberton.

While the preliminary investigation may proceed even with Pemberton’s non-appearance, Roque argued this is not possible if the case is already in court.

“The court needs to have jurisdiction,” he said.

Disappointed

Sought for comment following the hearing, Laude’s German fiancé Marc Sueselbeck expressed disappointment over the failure of Pemberton to appear at the hearing.

“I was expecting that he will play every card to make things last,” he said. “We have to wait. Maybe he will attend next time and face the consequences of what he did.”

Sueselbeck, who arrived Monday night, urged Pemberton to “show up and stand for what he did.”

Meanwhile, Laude’s mother Julita could not contain her anger at Pemberton’s absence during the hearing.

“You have to face the consequences of your actions,” she said in Filipino.

Earlier in the day, Julita called on President Aquino to ensure that justice will be served for the death of her son.

“We may be small people… but we worked hard to get him elected,” she said.

The Department of Foreign Affairs also expressed disappointment over Pemberton’s absence at the preliminary investigation.

“This is part of due process and the rules of court but by not appearing he may be considered to have waived his right to be heard,” DFA spokesman Charles Jose said.

Jose said Pemberton must have been acting on the advice of his legal counsel when he did not appear at the preliminary investigation.

“There was actually no violation but then we are just disappointed because we have been raising this with the US side, but then, like I said earlier, he was acting on the advice of his Filipino legal counsel,” he said.

Jose said “the essence of a subpoena is to require a person to appear.”

“But then of course the rules of court, I think, that allows non-appearance of respondent at this point,” he added.

Various militant groups calling for justice for Laude and the junking of the VFA held a program during the conduct of preliminary investigation at the Olongapo City Hall of Justice.

Gabriela party-list Rep. Emmerenciana de Jesus said the government cannot separate the murder of Laude from the issues of the VFA.

“Jennifer is not the first and certainly not the last victim of human rights violations in the hands of US troops protected by the VFA and the Philippine government,” De Jesus said.

She said the VFA had allowed the exit of the four American witnesses that should have stayed in Philippine territory even before their culpability or innocence had been ascertained by the courts.

“That thousands of military and civilian American personnel can enter and leave the Philippines as the US military pleases without having to show travel or diplomatic credentials is the fundamental reason why the Supreme Court must declare the VFA as unconstitutional,” De Jesus said.

Malacañang, on the other hand, gave assurance the four American witnesses that left the country would continue to cooperate in the investigation of the incident.

Presidential Communications Operations Office Secretary Herminio Coloma Jr. said the government would uphold the legal processes in seeking justice for Laude.

He explained the case was not yet under the jurisdiction of the court but the Department of Justice, through the Olongapo City Prosecutor’s Office.

The City Prosecutor’s Office has the primary duty to conduct the preliminary investigation and make the determination on the matter of calling the suspect or witnesses to appear before such investigation.

Coloma said there are laws to be followed and the DOJ, through the City Prosecutor’s Office, would undertake the appropriate action.

He said this when asked if the US move was an indication that it would not cooperate in the resolution of the case.

Coloma stressed the two sides had been cooperating to obtain justice based on the provisions of the VFA. – Pia Lee-Brago, Bebot Sison, Ric Sapnu, Aurea Calica, Paolo Romero