US demands custody of convicted Marine

The US Embassy in Manila sent a note verbale to the Department of Foreign Affairs (DFA) yesterday seeking to regain custody of convicted rapist US Marine Lance Cpl. Daniel Smith until the completion of judicial proceedings.

Foreign Affairs Undersecretary for Special Concerns Rafael Seguis told reporters that the US Embassy "reaffirms the right of the United States military authorities to exercise custody of any US personnel over whom the Philippines is to exercise jurisdiction until completion of all judicial proceedings, notably in the ongoing legal case of Lance Corporal Daniel Smith."

The embassy cited in the diplomatic note Article V, paragraph 6 of the RP-US Visiting Forces Agreement (VFA), which states that "custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately be with the United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings."

Seguis said Smith, who was convicted of raping a 23-year-old Filipina identified only as Nicole at the former US naval base in Subic on Nov. 1 last year, may be transferred to the custody of the embassy if authorized by the court.

A motion for reconsideration was set to be filed by Smith’s lawyers to transfer custody to the US embassy.

"The Department of Foreign Affairs is coordinating with the Department of Justice (DOJ) on the matter, including the Philippines’ compliance with its treaty obligations," Seguis said.

The DFA said that the custody of a member of the US Marines remains with US authorities until judicial proceedings are completed.

In a statement, the DFA cited a clarification made by the DOJ on the issue of custody pursuant to the provisions of the VFA following a decision rendered by Judge Benjamin Pozon of the Makati Regional Trial Court that found Smith guilty of rape while his co-accused Staff Sergeant Chad Carpentier, Lance Cpl. Keith Silkwood, and Lance Cpl. Dominic Duplantis were acquitted of complicity.

President Arroyo’s legal adviser Sergio Apostol said Pozon might have erred when he ordered Smith’s detention at the Makati jail.

Apostol explained that Malacañang has nothing to do with the negotiation for Smith’s custody, but he said that under the VFA Smith should remain under US custody until his conviction and sentence is made final and executory by a higher court.

‘Solitary confinement’

Smith, 21, of St. Louis, Missouri, who is now detained at the Makati City Jail, spent his first night as a convicted felon at a room inside the detention center.

Smith, who was sentenced to 40 years in prison, was not detained at the prison cell and mixed with other prisoners.

He had to sleep sitting on a chair while a fluorescent lamp provided light to the small room where the jail’s records are kept. An electric fan was placed inside the room.

Jail warden Superintendent Delvic Oreiro said Smith’s lawyers spoke to the American until 3 a.m. while his spiritual adviser, a Protestant pastor who was not immediately identified, was allowed to stay until yesterday morning to keep him company.

At least four jail guards were assigned outside Smith’s room which is adjacent to the warden’s office.

Oreiro, meanwhile, assured Nicole and her family that although Smith appears to be a "special case," Smith is not being given special treatment or attention.

He confirmed that two US embassy officials visited the US Marine early yesterday morning and were allowed to see him even though visiting hours start at 9 a.m.

"One (of the US officials) had a laptop but we did not allow him to bring it inside. High-level security tayo," Oreiro said, adding that Smith will be staying at the MCJ’s records room for now.

Though the commitment order signed by Judge Pozon identifies him as a temporary inmate for "safekeeping" until the US and Philippine governments decide on where he will be detained as allowed under the VFA, he was treated like an ordinary prisoner and not allowed to use a cellular phone.

Meanwhile, Philippine National Police chief Director General Oscar Calderon said that the police are reluctant to detain Smith at the police headquarters in Camp Crame, Quezon City.

He said the PNP prefers not to take prominent detainees like Smith that could disrupt daily activities in the police camp.

"I would say na huwag sana dito sa Crame dahil ito ang center ng police activity, ito ang headquarters namin at sana mahiwalay kami sa mga issues na iyan para makapagtrabaho naman iyong naririto sa Crame," Calderon explained.

Smith’s lawyers are working overtime in an effort to speed up the process to allow the US embassy to take custody of Smith again.

The lawyers of the firm that represented the three US Marines who were acquitted, will now take over the appeal of Smith.

Sycip Salazar Law Office will lead the legal team of the convicted American.

Lawyer Jose Justiniano, lead counsel of Silkwood, said he was not informed if they will work with the previous lawyers of Smith.

"Hindi ako pumunta dun (sa city jail), naawa ako eh," said lawyer Ricardo Diaz, one of Smith’s previous counsels, explaining that he didn’t go to the jail because he felt sorry for his client.

"We have agreed that additional lawyers will be taken in for the habeas corpus petition," he said noting that all avenues are being explored in an effort to get the US Marine out of the Makati jail so that he can again stay at the US embassy.

Diaz said the habeas corpus petition, which will question Judge Pozon’s order to detain Smith at the Makati jail, is being rushed and will be filed before the actual appeal.

Lawyer Benjamin Formoso said the habeas corpus petition could either be filed at the Court of Appeals or directly to the Supreme Court.

Sen. Miriam Defensor-Santiago, chairwoman of the Legislative Oversight Committee on the VFA (LOVFA), said the place of detention of Smith, while his case is on appeal, would have to be determined by mutual consent of both the Philippine and US governments.

"So the question of choice where the accused will be detained pending final judgment has to be bilateral in nature," Santiago said.

Sen. Richard Gordon, a member of the LOVFA, said the detention of Smith will be based on the VFA.

"We cannot govern on the basis of emotions and what not. It is for this reason that we negotiate because if anything happens, that will be the grounds upon which you effect the agreement," he added. - With Paolo Romero, Marvin Sy, Cecille Suerte Felipe, AP, AFP