Smith no longer in RP - US government

MANILA, Philippines – US Marine Lance Corporal Daniel Smith left the country yesterday after the Court of Appeals (CA) acquitted him of the crime of rape and ordered his immediate release from detention, the US Embassy said yesterday.

However, sources at the Ninoy Aquino International Airport (NAIA) said that Smith is booked on the early morning flight of Narita, Japan-bound Northwest Airlines tomorrow.

Bureau of Immigration spokesman lawyer Floro Balato Jr. said records at the NAIA and the Diosdado Macapagal Airport in Clark Field, Pampanga were checked and Smith’s name did not appear on any flight manifest.

Air Force spokesman Maj. Gen. Gerardo Zamudio said there was no US aircraft that took off from Subic or Villamor Air Base.

The embassy said Smith’s release from US custody and his departure were in compliance with the CA order and the decision should be respected.

“Following the decision of the Philippine Court of Appeals, Daniel Smith departed the Philippines under the authority of United States military officials,” the embassy said in a statement.

The mission also stressed that Smith remained in US custody since 2005 throughout the “long, difficult and emotional case” to comply with the Visiting Forces Agreement (VFA).

The CA ruled on Thursday that his sexual tryst with “Nicole” was “a spontaneous, unplanned romantic episode,” and that they were “carried away by their passions.”

The court said “the romantic episode” was “only rudely interrupted” when the van carrying them “suddenly stopped to pick up some passengers.”

“This has been a difficult and emotional case for all involved, especially their families and loved ones. We hope that the parties can now move on with their lives,” the embassy said.

In reversing Smith’s conviction, the CA said no evidence was presented in court to show that the American had employed force, threat and intimidation on Nicole.

The CA said it did not consider the reported recantation of Nicole last month, as well as the reported leakage of a draft decision of retired Associate Justice Agustin Dizon, but decided on the merits of the case.

Smith was convicted of raping Nicole on Dec. 4, 2006, and legalities around custody and sentencing have been ongoing for the past two and a half years.

Due to the highly contentious VFA, Smith has been in the custody of the US embassy instead of a Philippine prison.

No appeals on Smith acquittal

The Philippine government has no plans of appealing the acquittal.

Justice Secretary Raul Gonzalez explained that a CA acquittal cannot be subject of petition for review and elevated to the Supreme Court unless grave abuse of discretion on the part of the three lady justices who issued the ruling is proven.

“Showing that there was grave abuse of discretion would be futile because I don’t think there’s any,” he said in an interview.

The CA division that acquitted Smith is composed of three lady justices: Associate Justices Monina Arevalo-Zenarosa, Remedios

Salazar-Fernando and Myrna Dimaranan-Vidal. Gonzalez sees this circumstance with significance.

He pointed out that the decision of the 11th Division of the appellate court was agreed upon by three lady justices, which should have already dispelled allegation of grave abuse of discretion.

“In this case, they (lady justices) should have been more sympathetic to the Filipino woman. These are three senior justices as compared to the Makati trial court where there was only one,” he said.

Gonzalez shares this belief with Solicitor General Agnes Devanadera and said they would respect the CA decision, which was based on “valid grounds.”

The Justice secretary said he sees nothing wrong with the reported speedy release of Smith, and downplayed possible violations of protocol when the American serviceman was immediately flown back to the US.

Court-martial awaits Smith

However, Smith’s legal woes may not be over yet as he could possibly face court-martial proceedings at the US military base in Okinawa, Japan, according to Department of the Interior and Local Government (DILG).

DILG Undersecretary Marius Corpus said Smith may still face court-martial, just like his three supposed accomplices who belonged to the 31st Marine Expeditionary Force stationed in the US military base in the southern island of Japan.

“Smith may soon be a free man, but his legal ordeal may not be over yet,” he said.

Corpus was the chairman of the inspection team formed by DILG Secretary Ronaldo Puno to oversee the custody of Smith while detained at the US embassy.

Smith’s co-accused who were earlier acquitted by the Makati Regional Trial Court were US Marine Staff Sergeant Chad Carpentier, who was dishonorably discharged as he was the platoon leader, while Lance Cpls. Keith Silkwood and Dominic Duplantis were less than honorably discharged.

Corpus said his last visit to Smith was in March when he noted that the Marine officer was visibly gaining weight.

Smith still here

Nicole’s former counsel, lawyer Evalyn Ursua, said she doubts if the amount paid to her client was only P100,000 because she was not privy to the agreement.

Ursua also said the task of finding extraordinary legal remedies like the filing of a petition for certiorari now rests with the Office of the Solicitor General, since she is no longer Nicole’s lawyer and rape is a public crime.

But she doubts if the government will even pursue such a move.

But as for the ethics complaint against Smith’s lawyer, Jose Justiniano, and the Sycip, Salazar, Hernandez and Gatmatian law firm, she said she will proceed with the legal action against them before the SC.

“Unfortunately, they cannot get away with their ethics violation. They have violated the code of professional responsibility and they should be held responsible for that,” Ursua said.

Justiniano, on the other hand, told The STAR that Smith will not ask for the money to be returned because the amount can now be considered as some kind of settlement between both parties.

And while Nicole gets to keep her P100,000, he vowed to stay true to his promise that he will respect her and her family’s privacy by not talking about the case especially on the legal points.

“There are instances that an accused is acquitted yet you still pay damages because you caused injury,” Justiniano explained.

According to him, the CA’s decision acquitting Smith of rape is silent about the money already paid to Nicole.

Justiniano also clarified that the CA order for Smith to be immediately released does not mean being kicked out of the US embassy in Manila.

“It just means that he can now leave the premises,” he said, noting that his client, as far as he knows, is still inside the container van where he had been staying since his transfer from the Makati City Jail in January 2007.

“It doesn’t really matter, what’s important is the decision,” he said, adding that he is too busy to visit or give Smith a call and talk about the acquittal.

As for the ethics complaint filed by Ursua against him before the SC in relation to how a lawyer from his own firm notarized Nicole’s March 12, 2009 affidavit, Justiniano said he is wondering why the alleged victim’s lawyer is still acting like counsel for the complainant when her services have already been terminated.

Palace: ‘Don’t look at us’

Meanwhile, Malacañang said there was nothing irregular in the swift departure of Smith from the country even as it maintained it had nothing to do with his acquittal in the CA.

Press Secretary Cerge Remonde said in a news briefing that there was proper and prior coordination between the Department of Foreign Affairs and the US embassy before Smith’s departure.

“There is no more legal impediment. The decision of the CA was very clear,” Remonde said.

“In acquittals, the minute they hold you a minute longer is a violation of the law, and a violation of your human rights,” he said.

He appealed to critics to respect the decision of the CA.

He said the decision stated that the case was decided strictly on its merits and the VFA has no bearing on the case.

“This (Smith case) has become an ideological not a legal issue and the critics would always find something wrong as long as it has something to do with the US,” Remonde said.

“Our courts have spoken, we have to respect the decision of the CA,” he said.

He said the Palace was among the “last to hear of the decision.”

“The government has accepted the decision as everybody should,” Remonde said.

He said Solicitor General Devanadera informed him that her office will make a manifestation with the SC that the custody issue is now moot and academic because of Smith’s acquittal. – With reports from Rudy Santos, Evelyn Macairan, Cecille Suerte Felipe, Jose Rodel Clapano, Michael Punongbayan, Edu Punay, Paolo Romero