The Subic Rape Case

Thursday, July 20, 2006
Witnesses: Dr. Francisco Supe, Chief Police Investigator, PNP Crime Laboratory
Police Senior Insp. Edmar de la Torre, forensic DNA analyst

Two forensic DNA analysts who testified today said there might have been a contamination of the evidence submitted to them for DNA testing, but it did not affect the results of their analysis.

In separate accounts, Dr. Francisco Supe and Police Senior Inspector Edmar de la Torre confirmed the possibility of evidence contamination prior to, but not during the DNA testing.

Supe and de la Torre, both from the Philippine National Police Crime Laboratory, conducted a DNA analysis on the panties of Nicole and the condom allegedly used by Lance Corporal Daniel Smith.

Both pieces of evidence yielded positive for female DNA profile but only the panties had a male DNA profile.

Read the rest of this entry »

Tuesday, July 11, 2006
Witness: Raquel Fortun, forensic pathologist

An expert witness testified today that injuries on Nicole’s genitalia do not indicate consensual sex.

Forensic pathologist Raquel Fortun confirmed an earlier testimony of Dr. Rolando Ortiz, who had examined Nicole, that the injuries of the complainant were “consistent” with her claim of sexual assault.

As prosecution witness, Fortun was made to render her opinion on the findings of Ortiz’s examination of Nicole, and of the Philippine National Police crime laboratory’s report on the absence of semen in Nicole’s panties and on a used condom.

“Contusions on both sides of the labia minora indicate an injury due to a blunt force… probably the forcible penetration of the opening of the vagina with a blunt object, normally, an erect penis,” she said.

Citing several books and journals that she brought with her to the stand, Fortun said that although getting bruised during consensual sex is possible, it is still “unusual” because a woman usually positions herself to avoid being hurt during intercourse.

Fortun said a “relaxed and not resisting” woman would angle or tilt her pelvis so as to be “receptive to the thrusts of a penis.” Fortun added that a woman’s genitalia would get naturally lubricated, thus easing penile penetration.

Reading off the book “Color Atlas of Sexual Assault,” Fortun said “human sexual responses,” like those mentioned, prepare individuals for “non-traumatic intercourse,” but these are “typically absent in sexual assaults”.

When asked for her opinion about the “unusual tenderness” that Ortiz observed in Nicole’s vaginal walls, Fortun said it could be caused by an internal contusion or injury.

Meanwhile, Fortun expressed doubt about the report of the PNP crime laboratory. She said the test that the lab used for semen detection is “very, very old” and is “no longer used in modern laboratories”.

The PNP crime lab used the Florence test to examine Nicole’s underwear and a used condom, which were both negative for semen.

Fortun explained that modern literature on forensics no longer mentions the said test. Even a book published in 1952 states that the Florence test is “nonspecific and non-sensitive”. It is deemed “unreliable” and sometimes yields “false results”.

A heated debate ensued when defense lawyer Jose Justiniano, counsel for accused Lance Corporal Keith Silkwood, rose and accused the prosecution of “impeaching the PNP crime lab report” and of “suppressing evidence”.

Private prosecutor Evalyn Ursua retorted, saying it was actually the defense that was “suppressing the truth about science”.

Ursua said she just wanted the doctor to explain that the test was “antiquated” so the court would be able to appreciate the significance of the document in question.

Justiniano exclaimed that “it is unfair to the police officer who made the report to be considered an ignoramus just because this doctor (Fortun) says the method he used is already obsolete.”

At this point, Judge Benjamin Pozon of Makati Regional Trial Court branch 139, banged his gavel and ordered a recess.

After the 40-minute break, Fortun continued her testimony and explained to the court why both specimens, the condom and the underwear, lacked seminal stains.

“The semen could really be absent, or it could be that it was just not detected,” she said.

Fortun said factors such as the technique used in collecting and the procedure done to detect sperm could have affected the findings of the report. She added that various transfers and handling could have contaminated and degraded the evidence.

She also admitted that it was difficult to evaluate the lab findings on the condom because “it had no description of the condom, no indication of what part of it was analyzed and the test used was unreliable.”

Fortun further said that ideally, the condom should have been recognized and collected as evidence, properly handled, placed in a clean, sealed and labeled container and refrigerated.

She told the court that sampling must be done both inside and outside the condom, and the test used to examine it must be reliable.

The sample should also be immediately submitted for examination because the cut-off time to test for sperm content is 72 hours. The longer the delay, the more the specimen degrades, she said.

As for the underwear, Fortun said its lack of seminal stains could be explained by the use of a condom by the accused. Seminal ejaculate could have been deposited in the condom.

Meanwhile, Fortun said that based on Ortiz’s description, the bruises on Nicole’s arms and legs were probably caused by a blunt, rounded object such as a “fingertip”. These were “consistent with the alleged circumstances,” she added.

Judge Pozon interrupted Fortun and advised her not to make reference to the alleged crime when interpreting the findings of the medico-legal report of Ortiz.

On cross-examination, lawyer and physician Antonio Rebosa, counsel for accused Lance Cpl. Dominic Duplantis, tried but failed to establish that Nicole’s whitish discharge that Ortiz noted indicated an infection.

In direct testimony, Fortun said that it is normal for women to have a whitish discharge.

Rebosa also asked the Dr. Fortun about the possibility that, having lacerations in the genitalia, Nicole could be in a “non-virginal state” or had had previous sexual intercourse.

Ursua objected, saying that a woman’s virginity does not prove or disprove sexual assault, and that even marital rape is recognized in Philippine law.

Pozon, however, allowed the question.

Fortun answered that doctors do not use the term “virginal state” in their medical findings. She added that the condition of the hymen does not indicate a woman’s virginity.

“Even young children and (sexually) inexperienced women have been found to have notches, which, to an examiner, may be misconstrued as an indication of sexual activity,” she said.

Fortun further said that it is no longer valid to regard the hymen’s condition as indicative of a woman’s sexual activity.

Monday, July 10, 2006
Witness: Nicole

Tension ensued about 10 minutes before the hearing started today when ‘Nicole’ repeatedly pounded on accused Lance Cpl Daniel Smith with her handbag, claiming he tried to trip her when she passed by him as she entered the courtroom, then fell screaming and weeping on the floor while embassy aides lifted Smith onto the row of seats behind him.

Startled prosecution and defense lawyers rushed to stop ‘Nicole’, help her to her feet, and take her out of the courtroom. She had walked in with the legal aides of her lawyer Evalyn Ursua when she suddenly turned around on Smith and started hitting him with her handbag.

Smith was then sitting with Lance Cpls. Keith Silkwood and Dominic Duplantis on the seats provided for the accused, which are near the entrance of the Makati session hall being used for the trial. In front of them, about half a meter away, sat their lawyers and the fourth accused, Staff Sgt. Chad Carpentier. Court observers and guests have to pass by this space to get to the other side of the hall.

Ursua said she did not see what happened; only that ‘Nicole’ fell off balance. ‘Nicole’’s mother, who also rushed to her side, said the accused had tried doing this before. Ursua’s legal aides, however, said that ‘Nicole’ was not intentionally tripped. They said she only became emotional after she saw that there was little space to pass through.

The hearing proceeded despite the incident, with ‘Nicole’ taking the stand for the second time to continue her direct testimony. Makati Regional Trial Court Branch 139 Judge Benjamin Pozon was, however, forced to declare a 10-minute recess after ‘Nicole’ cursed and slammed her palm on the witness stand 30 minutes into the hearing while narrating a delicate portion of her testimony.

‘Nicole’ had testified on Thursday, July 6, that Smith pulled her by the wrist to go outside the bar although she insisted that she stay where she was because she was waiting for her stepsister. She added today that her world was already spinning at the time because she was very drunk and dizzy. The next thing she remembered, she said, was that Smith was on top of her kissing her lips, neck and chest and fondling her breasts.

She said she tried to push him away with her hands because she didn’t like what he was doing, but was not successful because she was very weak and Smith was heavy. She turned her head to the right and to the left to avoid his kisses on her lips but was not successful either. She screamed but she said there was music. She also said that she heard voices and laughter, so she concluded that there were other people with them.

‘Nicole’ told the court that she knew it was Smith because she saw his face in front of her own through a light that turned on and off. She also said she didn’t know where she was.

She said Smith continued doing what he was doing despite her efforts to ward him off. Right then, she was afraid that she might be raped, saying: “Kasi nakahiga na ako tapos hinihipuan nya dibdib ko, nanlalaban ako pero pinapatuloy pa rin nya. San pa ba hahantong yon (Because I was already lying down and he was fondling my breasts. I fought him off but he continued what he was doing. Where else would that lead?)?”

‘Nicole’ said she was feeling very weak by then, her head was aching, and her brain was shutting down but she fought it because she wanted to stop Smith. The last thing she remembered was that she was fighting him.

She said she didn’t know what happened after that because when she came to, she was on the ground with her pants put on backwards, the zipper of her jeans at the back. She wore loose fit denim pants that night, a white panty, and a mint green blouse streaked with white. The panty and the jeans have since been admitted as evidence.

She also said her phone and money weren’t in the pockets of her jeans anymore, but found instead an empty blister pack of pancreatin. She said she didn’t know how it got there.

‘Nicole’ also said she noticed a woman crying in front of her when she regained her consciousness but didn’t notice the woman’s face because her head was aching and she was dizzy.

She went back to the Neptune Club with policemen later that night to look for Smith. “Gusto ko siyang murahin. Gusto ko siyang patayin…dahil ni-rape nya ako. (I wanted to curse him, I wanted to kill him…because he raped me,” eh said.

But they didn’t find Smith there. ‘Nicole’ found herself next in the balcony of the Grand Leisure Hotel, where she and her two sisters had checked in for their vacation. She said she didn’t know how she got there, but she saw that her stepsister Anna Liza Franco had come down from their room crying and was trying to talk to her.

‘Nicole’ said she didn’t answer Franco’s questions because she was confused, afraid, dizzy, and she didn’t know how to tell her sister what had happened or how to find Smith. She was also afraid that her mother might get angry because the latter had told her the morning before the alleged rape incident to pack up and go home.

She said she felt pain in her body and in her vagina, from which she confirmed that she had been raped. She then went to the James Gordon Memorial Hospital with Franco and two policemen to undergo a medico-legal exam.

At the OB Room of the said hospital, she said the doctor asked her, “Na-rape ka? Baka ginusto mo? (You were raped? You must have wanted it?)

‘Nicole’ said she became hysterical upon hearing this, so she retorted angrily, “Hindi ko ginusto yun! Sino bang gugustuhin na ma-rape? (I did not want it! Who would even want to be raped?)”

She said the doctor left them after that and was gone for a long time. When she came back, ‘Nicole’ said the doctor attended first to a pregnant woman who had come in after them. When ‘Nicole’ was finally examined, she said her vagina was only swabbed.

‘Nicole’ was then accompanied by Franco and their friend, US Navy Petty Officer 2 Christopher Mills, who had invited them to Subic, to the Investigation and Intelligence Office (IIO) of the Subic Bay Metropolitan Authority where they all signed voluntary statements.

After that, ‘Nicole’ went back to the hotel, where she tried to eat but was only able to swallow a spoonful of food. She also forced herself to sleep but couldn’t because her mind was in disarray.

While they were at the hotel, Guy Papageorge, an agent of the Naval Criminal Investigative Service (NCIS) of the US Navy arrived and brought them back to IIO, this time to the office of Division Chief PaquitoTorres. There, ‘Nicole’ cried, saying she didn’t want to talk to a male investigator so Elsie Cabral, another investigator, talked to her instead.

At the IIO, ‘Nicole’ said a certain Ben Natividad gave her two options: to file a case or to settle. She decided to pursue the case. She also said Fe Castro and Joseph Khonghun arrived while she was there. She said Castro pointed to her and identified her as the woman she had seen being unloaded from the van like a pig. ‘Nicole’ said it made her even more angry when she heard this.

“Lalong lumakas pakiramdam ko na binaboy talaga nila ako, na inabuso talaga ako. (I felt more convinced that I was molested by them, that I was abused), she said.”

‘Nicole’ also saw Timoteo Soriano, the driver of the van where she was purportedly raped. She said Soriano told them he would help. She then changed into the clothes that Franco had brought for her. While changing, she said she noticed bruises on her right wrist and right leg. She then gave her pants and underwear to Genevieve Puno, the custodian of evidence at IIO.

While at the IIO, ‘Nicole’ also learned that the IIO investigators had procured a trip ticket booklet from the scene where she was unloaded from the van. She was told that the investigators used the booklet to call up the van’s agency.

They were then taken to a safehouse. The morning after (Nov. 3), they went again to the hospital to have a medico-legal exam because they were told that the person in-charge was only available that day. They had gone there the day before to get the results of the first examination, but were only given the result of her urinalysis.

At the hospital, Dr Rolando Ortiz II, the medico-legal officer, conducted a pelvic exam on her. They got the result right away. ‘Nicole’ then filed her formal complaint at the Olongapo City Prosecutor’s Office that afternoon.

‘Nicole’ said she and her stepsisters fetched her mother and brother at the bus terminal after that. She added that she has not gone back to Zamboanga since the alleged rape because she felt ashamed. “Sa balita pala lang sinasabi na nila na masama ako. Jinu-judge nila ako kasi uminom daw ako. Ano bang masama sa iminom? (Even the news portrays me as a bad person. They judge me because I drank that night. What’s wrong with drinking?)?” she asked.

She broke down again at this point, which prompted the judge to adjourn the hearing 45 minutes early. The judge also ordered the four accused to sit in the gallery, where other court observers sit and which is away from the entrance, to avoid another tripping and hitting incident from happening again.

Thursday, July 6, 2006
Witness: Nicole

For almost three hours, Nicole took the witness stand and recounted the events that led to her alleged rape on Nov. 1, 2005.

At the start of her testimony, the 22-year-old complainant who accused four US servicemen of raping her told the jam-packed courtroom how she felt around American soldiers.

Nicole said she had a good relationship with them; there are many of them who patronize her family-owned canteen in Zamboanga.

The canteen, which is located near the Southern Command, has been catering to Filipino and American soldiers ever since she was little, Nicole said. She added that soldiers go there to buy food and souvenirs, to eat or just to hangout. They sometimes even ask her to withdraw money for them.

That’s how they trust us,” Nicole said in a shaky voice.

When asked how her family treated the American soldiers, Nicole leaned on the interpreter beside her and cried.

Private prosecutor Evalyn Ursua asked for a break and was granted a 10-minute recess.

It was only 1:20 p.m.

Kapamilya ang turing namin sa kanila (We regard them as part of our family),” Nicole said when the hearing resumed. She added that even her mother treated the two US Navy officers, Carlos Ocasio and Christopher James Mills, who invited them to Subic, as her sons.

Nicole said she and her mother met the two in July 2005. Every time their ship would dock in Zamboanga, they would go to the canteen and her mom would sometimes prepare lunch for them.

Barely two months later, Nicole said Ocasio and Mills invited Nicole and her mother for a vacation in Subic. Nicole declined, saying there would be no one who could take charge of their canteen. But her mother allowed her to go in October when her younger brother, who was then studying in Davao, agreed to temporarily manage the canteen.

On the morning of Oct. 30, Nicole, her stepsister Anna Liza Franco and half sister Carmela Franco boarded a plane to Manila. Ocasio and Mills promised they would shoulder Nicole’s and her sisters’ accommodation in Subic, while the three paid for their plane fare.

Before their departure from Zamboanga, Nicole’s boyfriend, a US Marine officer, called from Okinawa, Japan. She said he knew they were going to Subic and he told her to take care.

At this point, Nicole cried but composed herself after a while.

She narrated that they arrived in Subic at around 6 p.m., accompanied by her two brothers who fetched them at the airport in Manila. They went to Legenda Hotel where Ocasio checked them in.

They did not stay in the hotel, however. Ocasio told the 12-year-old Carmela that he didn’t want to be a “bad influence” on her. “There are some Americans who walk naked in the hotel,” Nicole said, quoting Ocasio.

So they transferred to Grand Leisure Hotel, where they stayed for the rest of their vacation.

Nicole, Anna and Ocasio went bar-hopping that night, while Carmela and her two brothers stayed in the hotel.

Nicole said they first went to Scuba Shack where she saw a Filipina sitting on the lap of an American and another couple kissing. Ocasio ordered rum-coke for them. She said she and Anna both took a sip but didn’t like the drink.

She further stated that she didn’t like the place because of what she saw. She whispered to Anna to ask Ocasio if they could go someplace else.

The three went next to Pier 1. Nicole said Ocasio ordered Vodka Sprite, which they drank. Ocasio then accompanied Anna to the restroom.

Mills arrived and ordered two shots of alcoholic drinks. Mills, who they usually tease as “stingy”, paid for their bills that night. To show her gratitude, Nicole said she drank the two shots, even if she and Anna didn’t like how the drink tasted.

Nicole recalled that after taking the drinks, she felt dizzy and leaned on Anna. Nicole whispered to her, “Kasalanan ‘to ni Chris. Di ko na kaya (This is Chris’s fault. I can’t handle it anymore).” She drank a bottle of water and although it helped, she still felt dizzy after.

Ocasio then suggested that they go to Neptune Club where they could sing, dance and drink. Nicole said she liked to dance and so she agreed. They stayed there for less than an hour. After that, they went back to Grand Leisure while Ocasio went to Legenda, where he and Mills were staying.

The next day, Oct. 31, Nicole said she, Anna and Carmela went to Legenda to meet Ocasio. Her brothers went back to Manila because they had jobs to attend to.

The four went to Zoobic Safari, then to Ocean Adventure. Ocasio’s superior called and told him that his liberty was already terminated. When he was gone, the girls went to a duty-free shop. Then they went back to the hotel at around 4 p.m.

Around midnight, Nicole said Mills called and invited them to play at the Legenda Hotel casino.

Ursua asked her of what date it was. Nicole answered Nov. 1.

At this point, there was a murmur in the audience. Ursua reformulated her question, clarifying if Nicole meant midnight between Oct. 31 and Nov. 1, or between Nov. 1 and Nov. 2. The defense objected, and the judge ruled in their favor.

Nicole continued her testimony. She said she and Anna went to Legenda and played blackjack and roulette, which Mills taught them. They stayed in the casino for about an hour then went back to Grand Leisure at around 1:45 a.m.

In the afternoon of Nov. 1, Nicole said she and her sisters went to the San Roque Chapel to light a candle for Nicole’s deceased father but the chapel was close so they went to Duty Free Port Exchange instead.

Around 6 p.m., Mills called, saying he was in Grand Leisure and had ordered a Yellow Cab pizza for their dinner. When they arrived in the hotel, they saw Mills with his liberty buddy, identified only as Garcia.

The pizza was delivered at around 6:30 p.m. Nicole said she and her sisters ate a slice each while the US servicemen had two slices each.

Nicole also said that except for Carmela, all of them went to Legenda casino to play blackjack and roulette. They stayed there until 8:20 p.m. when Mills invited them to go to the Neptune Club because he wanted to drink.

When they were at the club, Mills ordered two glasses of Vodka Sprite for Nicole and Anna. He also ordered a B-52 which they drank straight, as taught to them by Mills. Nicole said she felt dizzy afterwards.

Mills ordered a glass of Singaporean Sling. Nicole tasted it and drank half a glass.

Nicole said she and Mills went to the bar because there were no waitresses in the area where they were seated. Mills ordered a B-53 for both of them, and three glasses of Singaporean Sling. After she downed a glass each of the drinks, Nicole said she felt dizzy again.

Asked why she drank all those drinks, she said, “Kaya kami pumunta sa Subic ay para mag-enjoy. Kaya ako uminom (We went to Subic to enjoy. That was why I drank).”

Nicole also recounted that when she, Mills and Anna were dancing, a man she later identified as the principal accused Lance Corporal Daniel Smith, suddenly grabbed her hand and pulled her away from her companions. Nicole said she got scared because she didn’t know him.

She said she looked at Mills and asked if it was okay to dance with the man. Mills told her, “It’s okay. Go on. Enjoy.” He even told the man to “take care of her.”

At this point, Nicole wept again, prompting Ursua to ask for another break. Presiding judge Benjamin Pozon allowed a three-minute recess.

When the hearing resumed at 3:20 p.m., Pozon reminded Ursua that the prosecution could opt to exclude the public.

In trials for rape cases, the prosecution has the right to exclude the public, especially if the one testifying is the complainant and her testimony involves sensitive details about the alleged crime.

Ursua said the prosecution maintained its stance not to exclude the public.

Nicole continued with her narration. She said with the go signal from Mills, she danced with the man. While dancing, she learned that the man was “Genard or Gerard,” a 20-year-old US Marine officer.

When Ursua asked her if the man was inside the courtroom, Nicole pointed Smith.

Defense lawyer Benjamin Formoso, Smith’s counsel, made a manifestation that when Nicole was identifying his client, she wasn’t crying.

Ursua asked the court to also put on record that even if Nicole didn’t cry, she was giving Smith “dagger looks”.

Meanwhile, Nicole narrated that she, Anna and Mills had Long Island Iced Tea but she didn’t like its taste and drank only half of it. She said she still felt dizzy.

By this time, Nicole’s memory of the events began to falter. She said she didn’t know how, but after dancing with Anna, she found herself dancing with Smith. She added that she didn’t know where Anna went so she continued dancing with Smith.

While dancing, Nicole remembered that Smith would always make her turn her back to him.

Lawyer Francisco Rodrigo, counsel for accused Staff Sergeant Chad Carpentier, wanted to clarify if she meant she was being “turned around.” Nicole had a mini debate with him when she tried to explain what she said.

Being still the examiner, Ursua asked the counsel “not to participate in the answer of the witness”.

Nicole said that each time Smith made her turn, she responded by facing him because she always wants to see the face of the person she is dancing with.

She added that she still felt dizzy while on the dance floor and she could not remember what happened next.

She recalled drinking straight half a pitcher of Bullfrog that Garcia had ordered earlier but she didn’t know why she did that. She also remembered three men in front of her exclaiming, “Whoa!” after she finished the drink.

Nicole said she realized she didn’t know where her three companions were. She further stated that she did not eat anything except the slice of pizza for dinner. She also did not drink water at the Neptune club that night.

She remembered someone forcing her to go out of the club because it was hot in there but she refused, saying she was waiting for her sister.

She said her mind blanked out again and next thing she remembered, she was lying on her back and Smith was on top of her, kissing her.

At this point, Nicole broke down. The judge asked her if she could still go on or if she wanted to continue giving her testimony the next day. Nicole said yes to the latter.

Pozon banged his gavel at 4:05 p.m., 55 minutes before the usual court adjournment.

Monday, July 3, 2006
Witness: Anna Liza Franco

Nicole’s stepsister Anna Liza Franco took the stand for the fourth time today and reaffirmed her claim that someone tried to bribe them not to file charges against the four American servicemen who allegedly raped Nicole.

Testifying under cross-examination, Anna Liza Franco said a certain Ben Natividad approached and told her, “Magpaareglo na lang kayo (Agree to an arrangement).”

She said she met Natividad in the evening of Nov. 2 at the Intelligence and Investigation Office of the Subic Bay Metropolitan Authority. She added that it was the first and last time that she saw him.

Franco, who was with Nicole in Subic for a four-day vacation, had accompanied her when the latter went to IIO for an interview regarding the alleged rape.

She was also with the complainant when they went bar-hopping on the night of Nov. 1. Franco reiterated that her stepsister ate nothing but a slice of pizza. She further said that Nicole didn’t drink water even after they had several shots of alcoholic drinks.

Franco admitted to the court that she and Nicole weren’t familiar with the drinks. It was their friend, US Navy Petty Officer 2 Chris Mills, who ordered the drinks and told them what these were.

Franco also tried but failed to remember how far the Waterfront was from the Neptune Club, and how for long she and Mills looked for Nicole inside the club after they realized they lost her.

She recalled though that she described Nicole to a club employee later on when she came back to the club to look again for her sister. She asked the receptionist at Neptune if she saw a morena woman slightly bigger than herself, but of the same height, wearing a mint green blouse, blue jeans and sandals, and with shaggy, black hair.

After a few questions from private prosecutor Evalyn Ursua, the hearing was adjourned at 1:50 p.m. It was by far the shortest hearing in the trial for the Subic rape case.