Nicole’s cross, a memory test?

Friday, July 14, 2006
Witnesses: Nicole

Without attacking her testimony on how she was allegedly raped, the defense today cross-examined Nicole by merely testing her memory of the events that led to the purported crime.

In her 40-minute questioning, lawyer Patricia Formoso, counsel of principal accused Lance Corporal Daniel Smith dwelled on how Nicole got drunk on the night of Nov. 1 at the Neptune Club

Formoso, who assisted her father Benjamin in defending Smith, was the only lawyer to grill Nicole.

Lawyers Francisco Rodrigo (for Staff Sergeant Chad Carpentier), Jose Justiniano (for Lance Corporal Keith Silkwood) and Enrico Uyehara (for Lance Cpl. Dominic Duplantis) adopted the “no cross” tactic.

In an interview, the three counsels said that since Nicole did not mention their clients in her testimony, they chose not to cross-examine her.

Formoso, the sole female lawyer in the defense panel, started by asking Nicole how much she had planned to spend when she was in Subic for a four-day vacation.

Nicole said including plane fare, she intended to spend P20,000.

She added that she thought it was enough because Carlos Ocasio would pay for their accommodation and other expenses.

Ocasio and Navy Petty Officer Christopher James Mills, who invited Nicole and her sisters to Subic, were Nicole’s family friends in her hometown in Zamboanga.

Formoso also raised the issue of Nicole’s having a boyfriend, a US Marine, who at that time was stationed in Okinawa, Japan.

She made Nicole admit that although she told her boyfriend she would be going to Subic, she did not tell him her expenses would be paid by the two US servicemen.

Formoso further asked Nicole if she dreamed of going to the United States.

“It’s not exactly a dream. But being his fiancée, I want to go to the US to live with him,” Nicole answered, referring to her American boyfriend Brian Goodrich.

Formoso also went to the extent of asking Nicole what language her boyfriend speaks.

The question prompted private prosecutor Evalyn Ursua and presiding Judge Benjamin Pozon to ask what was its relevance, eliciting laughter from the court audience.

Formoso then asked Nicole to remember the intervals when she downed the six alcoholic drinks that she had in Neptune Club.

“What was the time when you drank the first order? What about the second, the third, the fourth and the fifth drinks? Do you still remember?” Formoso asked in succession.

Nicole said she didn’t know because she did not take notice of the time.

“Bakit ko po papansinin ang oras? Nag-iinuman kami so na wala akong pakialam sa oras (Why would I take note of the time? We were drinking so I didn’t care about the time),” she explained.

Nicole admitted to the court that she had gone to places that serve alcoholic drinks and where there is dancing, but it was her first time to drink with Ocasio and Mills.

She added that she enjoyed drinking because she was with her friends and her stepsister Anna Liza Franco.

When asked if she accepted drinks from strangers that night, Nicole said she only got her drinks from Mills who ordered and paid for them.

Formoso also asked Nicole if she remembered collapsing because of drunkenness and if at that time, she needed assistance to walk.

Nicole answered no to both.

Formoso however, made Nicole agree that she got mad, “furious even,” at the female doctor in James Gordon Memorial Hospital in Olongapo City when the latter commented “Baka ginusto mo (Maybe you liked it)” when Nicole told her about the alleged rape.

Formoso also tried to establish that immediately after her encounter with the doctor, Nicole went to the Subic Bay Metropolitan Authority Intelligence and Investigation Office to report the crime.

Ursua objected, saying the two incidents were not connected. Pozon ruled in her favor.

Meanwhile, Ursua did not conduct a re-direct examination because, as she later told the reporters, “Nicole’s testimony remained intact.”

Pozon however, clarified some points in Nicole’s testimony of the alleged rape.

He asked Nicole why she wasn’t able to successfully push Smith when he pinned her down on the van’s seat.

Nicole answered, “Your honor, mabigat po kasi siya at nanghihina na talaga ako (Your honor, he was heavy and I was feeling weak).”

She also said that she felt weak because she was very drunk that time.

The Makati judge further asked Nicole what she shouted to make Smith stop but the 22-year-old complainant said she could no longer recall.

She added that she could remember only shouting but not the exact words she shouted because she was afraid of what Smith was doing to her.

Pozon then asked Nicole for the source of the voices and the music that she allegedly heard when she was resisting Smith.

“Hindi ko po alam. Basta nanlalaban ako noon (I don’t know. I was struggling that time),” Nicole said.

Pozon also twice asked Nicole to describe the manner with which Smith touched her breasts.

Nicole, at first, said she could not recall, but later she admitted that she could not answer the judge’s question because she was ashamed.

When asked about how Smith kissed her lips while she struggled, Nicole said that all she could remember was he was kissing her.

Pozon further inquired what Nicole told the guard at the Neptune Club when she returned there in the wee hours of Nov. 2, after the alleged rape, looking for Smith.

Nicole said she told the guard that Smith did “something bad” to her.

Asked to explain what she meant by “something bad,” Nicole answered: “Rape.”

For his last question, Pozon asked Nicole if she told the guard that she had been raped.

“Hindi po. Hindi naman po ako proud na sabihin sa mga tao na na-rape ako (No sir. I am not proud to tell people that I was raped),” Nicole said, her voice trembling.



  1. Kitty said,

    January 20, 2007 at 11:35 am

    Survivor `Nicole’ Recounts Her Ordeal Vol. VI, No. 22 July 9 – 15, 2006 Quezon City, Philippines
    Women rape victims could learn a lot from Nicole, the 22-year old Filipina who was allegedly raped by U.S. soldiers last November 1. Nicole mustered enough courage to tell her story in a packed courtroom last July 6 during her first court testimony at the Makati Regional Trial Court Branch 139.
    Nicole felt betrayed as she was used to meeting and being nice to U.S. soldiers back in their hometown in Zamboanga, where she managed a family-owned canteen, only a stone’s throw away from a detachment that housed the soldiers participating in the joint military exercises last year.
    The canteen served as hangout for the soldiers, who during vacant hours would play cards with Nicole and her siblings, or just chat with them. Two soldiers eventually won their trust, Carlos Ocasio and Chris Mills of the U.S. Navy, who were treated as members of the family. Brian Goodrich – a U.S. soldier with the 12th Marines Operations Platoon based in Okinawa, Japan – became her boyfriend.
    Trip to Subic
    Trusting them, Nicole accepted an invitation from Ocasio and Mill to go to Subic in Zambales a week before October 30, their travel date.
    When they arrived in Subic by plane, they did not stay long at Legenda Hotel and immediately transferred to Grand Leisure Hotel, where they would be staying for three nights.
    For the next two days and two nights, Nicole and stepsister Annaliza Franco, visited several bars, casinos and duty-free shops. On Nov. 1, they went to San Roque Chapel at noon to pray for her father, a Philippine Navy officer at the time of his death in 1989.
    Back at the hotel at about 6:30 p.m., she and Annaliza met Mills who introduced them to a man surnamed “Garcia,” said to be Mills’ liberty buddy. After eating pizza, they proceeded to the casino and played until 8:20 p.m.
    Family outing
    Franco said she, Nicole and another 12-year-old sister were invited for a vacation in Subic on Oct. 30 by a family friend, US Navy Petty Officer Christopher Mills and another US soldier, Carlos Ocasio.
    The soldier changed his mind, however, and brought the five siblings to the Grand Leisure Hotel instead. Asked why, Franco said “because Ocasio did not want to set a bad example for [my 12-year-old sister] because he said there were many Americans roaming around naked” at the Legenda where the two soldiers were billeted

    Nicole Tells Her Story
    BY JHONG DELA CRUZ Vol. VI, No. 21 July 6, 2006 Quezon City, Philippines
    Posted 8:12 p.m. July 6, 2006
    Nicole said Carlos Ocasio and Chris Mills, from the U.S. Navy, invited her and her two half-sisters to take a vacation at Subic Bay Freeport in Zambales. She said that the two are friends of the family adding that they met them last July 2005.
    A week before they went to Subic, she said that she talked with Goodrich on the phone. Nicole said that when she told Goodrich about their planned vacation, he told her it was okay and to take care.
    Nicole, together with her two half sisters and two brothers, who joined them from Manila, visited Subic’s more popular tourist sites like Ocean Adventure, Subic Safari and Bat Kingdom during their four-day vacation arranged by Ocacio and Mills

    Subic rape victim tells of incident
    Manila Standard Today
    Nov. 28, 2005
    Malou Dungog
    OLONGAPO CITY — The controversy sparked by the Nov. 1 rape case of a Filipino girl by six United States servicemen continue as the next preliminary investigation will be heard Nov. 29.
    The victim, a native of Zamboanga City and manager of a Food Haus in Southern Command, Zamboanga City came to Subic Bay on Oct. 30 on board a Honda Civic, which she and siblings rented in Manila.
    In her statement executed before Administering Officer on Nov. 2, the victim said she arrived from Zamboanga to Manila and from there rented a car to Subic Bay with siblings Anna Liza (24); Ma. Carmela, 12; Ricsan, 24; and Ryan, 23. They checked in at Grand Leisure Hotel reserved by a friend, a certain Chris Mills from USS Stockholm.
    On the night of the same date, the siblings went to dinner at a restaurant here with a certain Carlos Ocacio, another US serviceman, go bar-hopping to different entertainment facilities at about 10:30 until past 11 p.m. at Neptune Club then returned to the hotel to retire for the evening.

  2. Kitty said,

    January 20, 2007 at 11:54 am

    Timeline of alleged Subic rape

    First posted 06:12am (Mla time) Nov 07, 2005
    By Tonette Orejas, Ansbert Joaquin
    Inquirer News Service

    Editor’s Note: Published on page A4 of the Nov. 7, 2005 issue of the Philippine Daily Inquirer
    [Editor’s Note: Timeline as narrated by Zambales Representative Milagros Magsaysay based on interviews with the victim, her stepsister, the driver of the Starex van and eight witnesses]

    11:15 p.m. Subic Telecom-Subic Chamber of Commerce offices
    Eight people are at the Alava Pier, between the Subic Telecom and Subic Chamber of Commerce offices, to watch US soldiers return to the ship (this is a practice by locals during the years when the US Navy was still at Subic until 1992). They say a Starex van pulled over and a black man alighted and sat on the pavement. Two Caucasians emerge later carrying the victim, by her hands and feet, as if she were a pig (“parang baboy”). The victim has her shirt and underwear on. Another Caucasian emerges from the van, throws away the remaining beer in a bottle. He rolls the bottle in the direction of the victim. He gets in the van and throws a pair of pants the victim’s way.
    The eight witnesses get near the victim. They say she looks “groggy.” A condom is hanging from her underwear while a trip ticket falls on the pavement. The ticket belongs to Star Ways Tours and Travel owned by one George Day at Clark. Witnesses call an SBMA mobile patrol to report a “possible rape.” They fetch victim’s stepsister at the hotel.

  3. Kitty said,

    January 20, 2007 at 11:55 am

    Timeline of alleged Subic rape

    First posted 06:12am (Mla time) Nov 07, 2005
    By Tonette Orejas, Ansbert Joaquin
    Inquirer News Service

    Editor’s Note: Published on page A4 of the Nov. 7, 2005 issue of the Philippine Daily Inquirer
    [Editor’s Note: Timeline as narrated by Zambales Representative Milagros Magsaysay based on interviews with the victim, her stepsister, the driver of the Starex van and eight witnesses]

    11 a.m. LED office
    US Naval Intelligence Service (NIS) begins investigation, gets statements from victim, driver and eight witnesses at the SBMA’s law enforcement department (LED).
    Victim tells investigators that the last thing she remembers is she felt dizzy at Neptune bar.

  4. Kitty said,

    January 20, 2007 at 11:56 am

    Feliciano Salonga, chair of the SBMA told GMA television news that the woman was hysterical…without clothes on except a pair of panties. It was obvious that she was intoxicated and incoherent. We gave her a pair of pants to cover herself. Dated Nov. 5, 2005 published on Page A1, Philippine Daily Inquirer

  5. Kitty said,

    January 20, 2007 at 11:58 am

    The evidence is strong against 6 American servicemen accused of gang-raping a 22 year old Filipina. There was obviously no consent, Zosimo Paredes, executive director of the Presidential Commission on the Visiting Force Agreement said. SBMA administrator Armand Arreza told in a phone interview Friday that there were witnesses, including the Filipino driver of a rented van where the alleged rape took place. A condom was even found inside the van, said Arreza. The SBMA is extending legal and even accommodation assistance to the woman, who is from Zamboanga and just spending a vacation in Subic, said Arreza. She met the Americans who invited her to go with them in a rented van. A few hours later, witnesses said they saw the woman being dumped unconscious from a van on a road, the SBMA said in a statement. The woman is said to be from a well-off family in the southern Philippine province, said a foreign affairs official who asked not to be named. First posted 02:25 pm Nov. 04, 2005

  6. Kitty said,

    January 20, 2007 at 11:58 am

    Jaime Avila Jr., a member of the SBMA bike patrol, said he spotted the condom on the ground not far from the spot where he saw Suzette weeping and embracing his fellow security officer, Noele Paule, at around 12:15am of Nov. 2, 2005, near the Telecom Building of Waterfront Road. There was a possibility that the woman was molested, according to the bystanders who saw her being unloaded from the van. I inspected the place and saw a possible piece of evidence, Avila said. He wrapped the condom in a piece of paper, put it in his pocket, and later turned it over to the SBMA Intelligence and Investigation Office. Close to where he had found Nicole, Paule picked up a trip ticket on which was written Starex van and the company name Starways Transport Service Inc. In her complaint, she accused Smith of raping her at around 11:30 pm on Nov. 1, 2005 while Carpentier, Silkwood, and Duplantis egged him on. Gerald Muyot, a security guard at the Neptune Bar, led a demonstration of how Daniel Smith supposedly loaded a barely conscious Suzette onto the van. Muyot had testified to seeing Smith carrying a drunken Nicole piggyback as they made their way out of the Neptune between 11:00 pm and 11:30 pm on Nov. 1, 2005. Published on page A1 June 10, 2005 Philippine Daily Inquirer

  7. Kitty said,

    January 20, 2007 at 12:03 pm

    Maria Fe Castro said in her sworn statement that she personally saw two of the apparently drunk US Marines carrying the panty-clad victim like a pig and dropped her body from the van to a grassy portion of the Subic Bay Freeport’s parking lot along Waterfront Road. Sunstar November 24, 2005

  8. Kitty said,

    January 20, 2007 at 12:04 pm

    Khonghun and his group were standing at the seawall, about 15 to 10 meters away from the parking lot, when they saw a dark colored Starex van stop behind his van. He saw an African-American, whom he later identified as Duplantis, walk out of the van a bit wobbly. The man walked to the curb and sat there. Another man, later identified as Silkwood, alighted next. A bottle of beer was in his hand. He then emptied the bottle and threw it on the pavement. He then returned to the van and I saw him holding both legs of a person. The other end of the woman was supported by another Caucasian later identified as Smith. In grilling Khonghun, defense wondered why she made no mention of rape in encountering apparently the first person to find her after she had been dumped by her alleged abusers. First posted 03:37 am Published on page A1 of June 9, 2006 Philippine Daily Inquirer

  9. Kitty said,

    January 20, 2007 at 12:12 pm

    Another expert witness for the prosecution, Dr. Kenneth Go, a medical toxicologist from the Philippine General Hospital, approximated that Nicole had a blood alcohol level of 445.2 mg/dL.
    He based his computation on witnesses’ accounts of the drinks Nicole had at the Neptune Club, the Subic nightspot where she and Smith met shortly before the alleged rape.
    Go also made the approximation based on testimony on Nicole’s demeanor after several drinks at the bar.
    The doctor’s testimony supported the prosecution’s allegation that Nicole was too drunk to have consented to sex at the time of the incident.

    0.02 — 0.03 BAC: No loss of coordination, slight euphoria and loss of shyness. Depressant effects are not apparent. Mildly relaxed and maybe a little lightheaded.

    0.04 — 0.06 BAC: Feeling of well-being, relaxation, lower inhibitions, sensation of warmth. Euphoria. Some minor impairment of reasoning and memory, lowering of caution. Your behavior may become exaggerated and emotions intensified (Good emotions are better, bad emotions are worse)

    0.07 — 0.09 BAC: Slight impairment of balance, speech, vision, reaction time, and hearing. Euphoria. Judgment and self-control are reduced, and caution, reason and memory are impaired (in some* states .08 is legally impaired and it is illegal to drive at this level). You will probably believe that you are functioning better than you really are. ( * —As of July, 2004 ALL states had passed .08 BAC Per Se Laws. The final one took effect in August of 2005.)

    0.10 — 0.125 BAC: Significant impairment of motor coordination and loss of good judgment. Speech may be slurred; balance, vision, reaction time and hearing will be impaired. Euphoria. It is illegal to operate a motor vehicle at this level of intoxication in all states.

    0.13 — 0.15 BAC: Gross motor impairment and lack of physical control. Blurred vision and major loss of balance. Euphoria is reduced and dysphoria* is beginning to appear. Judgment and perception are severely impaired.
    ( * —Dysphoria: An emotional state of anxiety, depression, or unease.)

    0.16 — 0.19 BAC: Dysphoria predominates, nausea may appear. The drinker has the appearance of a “sloppy drunk.”

    0.20 BAC: Feeling dazed/confused or otherwise disoriented. May need help to stand/walk. If you injure yourself you may not feel the pain. Some people have nausea and vomiting at this level. The gag reflex is impaired and you can choke if you do vomit. Blackouts are likely at this level so you may not remember what has happened.

    0.25 BAC: All mental, physical and sensory functions are severely impaired. Increased risk of asphyxiation from choking on vomit and of seriously injuring yourself by falls or other accidents.

    0.30 BAC: STUPOR. You have little comprehension of where you are. You may pass out suddenly and be difficult to awaken.

    0.35 BAC: Coma is possible. This is the level of surgical anesthesia.

    0.40 BAC and up: Onset of coma, and possible death due to respiratory arrest.

    FACTOID: Unbelted occupants account for 84% of impaired driving fatalities in Oklahoma (and 84% of impaired driving fatalities, nationwide). Fasten those seat belts! (NHTSA statistics)

  10. Kitty said,

    January 20, 2007 at 12:28 pm

    Fortun said she had analyzed 10 to 20 cases of sexual assault—involving both living and deceased victims—since she started practice in 1995. (She explained that she did not use the term “rape” in her discipline, pointing out that it was “not a diagnosis but a matter of jurisprudence for the court to decide.”)

    “Contusions on both sides of the labia minora indicate injury to the area due to blunt force…the result of forcible penetration of opening of the vagina…normally, an erect penis,” said Fortun in describing the condition of the victim.
    Fortun said this and the “unusual tenderness in the vagina” were “consistent with a recent injury.”
    Citing and quoting from various literature, Fortun said “[‘Nicole’s] injuries are unusual in normal consensual sexual act.”

    Comment: A sex worker doesn’t get aroused therefore it’s not lubricated and size matters.

  11. Kitty said,

    January 20, 2007 at 12:29 pm

    Subic rape case goes to ‘139’ judge
    First posted 01:57:07 (Mla time) 2006-04-04
    Tarra V. Quismundo

    SUSPENSE filled the Makati courtroom as the roulette wheel continued to spin. The judges and onlookers held their breath. Then cheers and applause erupted when the pointer stopped at number 139.
    Branch 139 Judge Benjamin Pozon of the Makati Regional Trial Court, however, was not around to pick up his assignment as he had filed a leave of absence the day before to last until April 16.
    What Pozon had won was the job of presiding over the trial of the four US Marines accused of raping a Filipino woman at the Subic Bay Freeport on Nov. 1 last year, a case that was moved out of Olongapo City for lack of a judge qualified to hear it.
    Olongapo City RTC Judge Renato Dilag had inhibited himself from the case after the victim’s lawyer pointed out that Dilag’s son had worked for the law firm representing one of the suspects, Staff Sergeant Chad Brian Carpentier. The other suspects are Lance Corporals Keith Silkwood, Daniel Smith and Dominic Duplantis.
    The two other Olongapo judges were disqualified for other reasons.
    The Supreme Court then ordered the case moved to Makati City, whose RTCs had relatively low case loads compared to other courts.
    Pozon’s absence, however, did not pose a problem, according to Makati RTC Executive Judge Sixto Marella Jr., “because he’ll be back anyway after Holy Week. If between now and then there is an urgent matter that has to be addressed, then it will be presented to the pairing judge.”
    Marella was referring to Branch 140 Judge Leticia Morales, Pozon’s designated reliever. Morales, however, was also on leave since early last month and was not expected back until after the Holy Week, her staff said.
    “Now if it so happens that the pairing judge is also not available, then I come in as executive judge. I can act on any urgent matter which will come in between,” said Marella, who presided over yesterday afternoon’s re-raffle.
    Handling the Subic rape case will be a first for Pozon, 53, a law graduate of the University of the East who joined the Makati RTC in December 2003 after serving as a judge in the Taguig Metropolitan Trial Court.
    “This is the first time for him to handle a rape case. If there’s an order from the DoJ (Department of Justice) to hold marathon hearings for the case, then we would,” said Branch 139 clerk of court Liza Marie Picardal.
    The Subic rape case would be in addition to the nearly 700 cases Pozon is handling, a case load that includes a four-year backlog, the length of time Branch 139 was without a judge.
    “All of these is a matter of case management, scheduling of hearings. What is important is that the presiding judge gets the cooperation of all parties. That way, postponements and cancellations of hearings will be minimized, if not totally eliminated,” Marella told reporters.
    Prior to his latest assignment, the biggest case handled by Pozon was the illegal detention case filed against former National Bureau of Investigation Deputy Director Samuel Ong, actor Rez Cortez and two others for allegedly holding military intelligence agent Technical Sgt. Vidal Doble against his will at the San Carlos Seminary in Makati in June last year.
    Ong, who remains in hiding, had sought sanctuary at the seminary after exposing what he called “the mother of all tapes” — audio recordings that purportedly proved that President Gloria Macapagal-Arroyo’s had cheated in the May 2004 elections.
    Marella said he was confident Pozon would be able to handle the controversial rape case, which would surely put him in the spotlight.
    “He is a very efficient judge,” Marella said.
    A fellow judge, Napoleon Inoturan, seconded: “He is a very diligent judge. He works even on Saturdays.”

  12. Kitty said,

    January 20, 2007 at 12:32 pm

    Tuesday, November 15, 2005
    Gonzalez against transfer
    of Subic rape case to DOJ
    By Jomar Canlas, Reporter
    JUSTICE Secretary Raul M. Gonzalez on Monday opposed a move of Katrina Legarda, legal counsel of the Subic rape victim, for the transfer of the case from the Olongapo Prosecutor’s Office to the Department of Justice.
    Gonzalez said he saw no reason for the transfer, because the case originated in Subic and therefore “Subic should order the preliminary investigation.”
    He pointed out that the case should be transferred to the justice department only when there is a clear sign that it is being whitewashed.
    Legarda wanted the transfer because it was difficult for her to travel from Manila to Subic each time she had to be there.
    Earlier, the DOJ said it is ready to oppose any move by the United States to let the six US Marines accused of rape go back to their base in Okinawa. The US Embassy has said it is not seeking such a transfer.
    Much less, Gonzalez said, would he agree to move the trial of the case to Japan and surrendering Philippine jurisdiction over the case.
    But, he added, if the Marines are given new assignments and have to be transferred to another location, then the Philippines would find that acceptable, since there is no clear provision in the VFA that the accused should be restricted to do their military work in Philippine territory.
    The Marines are expected to meet face to face at the preliminary investigation set on November 23 and 29 at the Olongapo Prosecutor’s Office.
    The subpoena was sent by the Department of Justice to the Department of Foreign Affairs, which will relay it to the US Embassy.
    The Marines will appear before Olongapo Assistant Prosecutor Raymund Viray.
    Named respondents are Keith Silkwood, Daniel Smith, Albert Lara, Dominic Duplantis, Corey Barris and Chad Carpenter.

  13. Kitty said,

    January 20, 2007 at 12:33 pm

    The Philippine STAR


    DOJ: Rape case stays in ’Gapo

    Publication Date: [Tuesday, November 15, 2005]
    Justice Secretary Raul Gonzalez rejected yesterday the proposal of lawyer Katrina Legarda to transfer the preliminary investigation of the rape case filed against six United States Marines from the Olongapo City prosecutor’s office to the Department of Justice (DOJ) in Manila.

    In a press conference, Gonzalez said that Olongapo City state prosecutor Prudencio Jalandoni is doing his job well so far.

    Gonzalez said transferring the preliminary investigation of the rape case against the six US Marines would be like admitting that the DOJ has lost confidence in Jalandoni.

    “I’m not inclined. There seems to be no reason to transfer the preliminary investigation on the rape case involving the US Marines. It is unfair because Prosecutor Jalandoni is a good prosecutor. I don’t know why he should be removed from the case,” he said.

    Legarda said in a television interview that she will file a request before Gonzalez to transfer the preliminary investigation from Olongapo to the DOJ in Manila to make it convenient for her and the victim.

    “We are not saying that it cannot be transferred. The first step is if we lose confidence in the prosecutor. We can relieve him if he is not doing his job well. You also have to consider the cost. For us, it will be more convenient,” Gonzalez said.

    As a general rule, he said the preliminary investigation has to be conducted in Olongapo because the rape allegedly happened at the Subic Freeport, which is within the city’s jurisdiction.

    Gonzalez said “in certain extraordinary situations” such as the prosecutor showing his or her bias, “we can either relieve the prosecutor and reassign another prosecutor or transfer the hearing to Manila. That is something that has to be considered first.”

    He said that unless there are complaints about the probity of the prosecutor’s office in Olongapo, there is no reason to order Jalandoni’s replacement.

    Jalandoni earlier set the preliminary investigation against the six US Marines, who are in the custody of the US embassy, for Nov. 23 and Nov. 29.

    Meanwhile, a ranking government official, who spoke on condition of anonymity, said a vague provision in the Visiting Forces Agreement (VFA) prevents the government from demanding custody of the six suspects, contrary to an opinion earlier aired by the DOJ.

    The DOJ said the US embassy can retain custody of the six US servicemen only during the preliminary investigation, but the Philippines can demand the transfer of custody once charges are filed against them in court and arrest warrants issued by the judge.

    The official cited a provision in the VFA which provides that “the custody of the US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

    “In short, the jurisdiction is with us but custody resides with the US. We can have it back but we have to talk bilaterally first and agree that it is an extraordinary case,” he said.

    The official recommended that Manila begin discussions for a bilateral arrangement with Washington and that both sides should agree that the rape of the 22-year-old Filipino last Nov. 1 inside a moving van at the Subic Freeport was a heinous crime and an extraordinary case so the transfer of custody to the Philippines could be undertaken at the diplomatic level.

    He warned that the six US servicemen, if convicted by their own military court ahead of the Philippine court, may serve their sentence in the US or in a US facility abroad.

    “But every time our courts require them, they will be brought back here. The case will go on. In short, they run parallel lines,” the official said.
    Defense Secretary Avelino Cruz Jr. said government agencies involved in handling the Subic rape case are adopting a “one voice” policy in issuing statements regarding the case.

    He said the Office of the President has designated the Department of Foreign Affairs to be the lead agency in handling the custody issue.

    Cruz said as a member of the oversight committee, he is among those who would look into the issues surrounding the custody of the six US Marines.

    As this developed, the alleged rape victim underwent a deoxyribonucleic acid (DNA) examination yesterday afternoon at the offices of the National Bureau of Investigation (NBI).

    NBI director Reynaldo Wycoco said the woman, a native of Zamboanga, was assisted by Dr. Idabel Pagulayan, who heads their Forensic Chemistry Division. The woman was accompanied by her custodian from the Subic Bay Metropolitan Authority.

    “Last Saturday afternoon, I was informed that the woman’s lawyer, Katrina Legarda, had asked the NBI for assistance and to have her undergo a DNA examination,” Wycoco said.

    However, he said the results of the exam would only be available after two weeks because “the reagents used in the DNA tests’ full reaction can only be determined after two weeks.” He did not elaborate on the purpose of the DNA test, nor which parts of the victim’s body were swabbed for samples.

    Results from the James Gordon Memorial Hospital in Olongapo City allegedly showed that the woman had a number of lacerations on her genitals but tested negative for sperm. The victim said her attackers used a condom. — Jose Rodel Clapano, Pia Lee-Brago, Jaime Laude, Evelyn Macairan

  14. Kitty said,

    January 20, 2007 at 12:42 pm

    But why inside?

    Supe’s reply: “Most likely it came in contact with the genital area, [but it] was turned inside out most likely, such that the [DNA] specimen was preserved.”

    He estimated that the condom was around eight inches long and around three centimeters in diameter.

    Valdez then asked Supe to demonstrate how a condom could have been reversed.

    Supe had apparently anticipated the question and brought a condom.

    Demonstrating, he said the condom could have been turned inside out in the act of removing it.

  15. Kitty said,

    January 20, 2007 at 12:42 pm

    Fake rape victims ‘very small percentage’ — witness

    First posted 21:55:14 (Mla time) 2006-07-13
    Tetch Torres

    WHILE there are women who make false accusations of rape, they comprise “just a very small percentage,” an expert witness for the prosecution in the Subic rape case said on Thursday.

    During his cross examination of forensic pathologist Dr. Racquel Fortun, lawyer Francisco Rodrigo, counsel of US Marine Staff Sergeant Chad Carpentier, asked the witness to confirm the views cited in a book written by Dr. Bernard Knight, a pathologist based in the United Kingdom, that there are women who make fake allegations of sexual assault for revenge, fear of pregnancy or to seek medical consultation for possible infection.

    Rodrigo also noted that like the victim, identified only as “Nicole,” those who usually make false allegations of sexual assault do so within 24 hours of the purported incident.

    Fortun agreed that this was a possibility but added that she disagreed with the view of Knight.

    Citing other statistics from surveys conducted abroad, she said only four to 14 percent of the more than 2,500 women surveyed were found to have made false allegations.

    “There are some who make false allegations but that does not mean that those who report the incident within 24 hours, all of them are making false allegations,” Fortun said.

  16. Kitty said,

    January 20, 2007 at 12:49 pm

    Don’t judge me too harshly, says rape victim
    First posted 08:15:29 (Mla time) 2006-03-08
    Pennie Azarcon-dela Cruz

    THE VISIT to the Subic Bay Freeport on Halloween night was supposed to be a family outing — until it turned into a nightmare.
    Two elder brothers had dropped off 22-year-old Nicole — not her real name — at a bar. According to the victim’s counsel, Evalyn Ursua, Nicole was accompanied by her 24-year-old half-sister and an American serviceman, a longtime family friend, while her 12-year-old sister stayed behind in the hotel.
    She felt totally at home in the bar with other US servicemen on furlough from a joint RP-US counterterrorism exercise in the Philippines.
    She grew up in a naval facility in Zamboanga, where her family runs a canteen frequented by US servicemen.
    After finishing her Management Accounting course at the Ateneo de Davao University and starting a nursing course, Nicole had decided to help out in the canteen.
    “I’m used to socializing with Americans so I felt safe and comfortable with them,” the daughter of a naval officer and a Philippine Navy employee yesterday told the Inquirer.
    Before the night was over on Nov. 1 last year, however, Nicole would accuse US Marines of dragging her into a rented van and raping her.
    Although four servicemen have been charged with gang rape and are now in the custody of the US Embassy, Nicole’s story has been met with general skepticism.
    Speculation is rife that she is a “good time girl” out to bleed the Americans for what some detractors described as “consensual sex.”
    Worse, when the case was pushed into the back burner by more urgent news headlines, radio commentators and columnists went to town with stories that Nicole and her family had been paid off to settle the case.
    Not a sex worker
    It became just too much for Nicole, who finally spoke to media “to correct impressions that I’m a sex worker who is in it for the money.”
    She vehemently denied the claims. “I am going to pursue the case until the guilty parties are convicted,” she vowed.
    It was a decision she had made immediately after the rape.
    “I just wanted to teach them a lesson,” she said, speaking in Filipino and English. “Not all women they meet are fair game.”
    It was only later that she realized how the case could hurt her and her family, “especially my mother,” she said, her voice breaking.
    Since the Nov. 1 incident, she has been staying in Manila. She sorely misses her family of 11 siblings. “This is the first and longest time I’ve been away from them,” she said.
    But she has accepted that she might eventually have to relocate to Manila, where her relative anonymity has preserved her privacy.
    In Zamboanga, where her family is quite prominent, people know about her case and talk about her. Some of her former classmates at the Ateneo have been interviewed on local radio.
    Not after money
    “I feel I can no longer walk the streets in Zamboanga,” she said. She feels embarrassed. Some friends pity her. “Other people look at me differently — like they think I’m only after money,” she said.
    What really hurt, she recounted, was the label “prostitute” that an American had thrown at her on national television during a women’s rally at the US Embassy to support her. “I’m the victim here. Why are they blaming me?”
    Online blogs about the case are as judgmental. “Even if she comes from a good family and graduated from a good school, she certainly lost her common sense when she stepped out with the six US Marines in that bar,” read a typical comment.
    “That is so unfair,” said Dr. June Pagaduan-Lopez, a psychiatry professor at the University of the Philippines College of Medicine and board member of the Sexual Violence Research Initiatives of the World Health Organization.
    “Why are we putting rape victims on trial here? Why are we asking only about their background? Why are we not looking at the record and background of the rapists as well?” she asked.
    Lopez, who has studied 112 rape cases at the Philippine General Hospital, said the Subic rape case again highlighted the common misconceptions that the public has about rape.
    “Foremost of these misconceptions is that rape could actually be consensual sex if the woman has no injuries,” she said. “But in 75 percent of rape cases, there are little or no signs of physical injuries.”
    Another myth is that rape only happens to loose women, Lopez said.
    “Rape happens across classes and ages.” This misconception often worsens the stigma attached to rape survivors, she said, adding:
    “That’s why most survivors relocate after the rape.”
    Again, contrary to popular perception, rapes are committed under circumstances where most women would feel safe.
    “Women are often raped at home, during dates, in places they would normally feel comfortable in,” Lopez said.
    Traumatic memory
    There is also the misconception that the women’s testimony must be “consistent.”
    “There is such a thing as traumatic memory which is not a chronological nor logical recall,” said Lopez.
    Fortunately, aside from counseling, there are ways to help rape victims cope, said Lopez.
    Together with the Women’s Legal Bureau, the Philippine Judicial Academy and the PGH Women’s Desk, Lopez is conducting a sensitization program for Regional Trial Court judges and personnel, and police officers.
    “First, it is important to reassure survivors about their physical health. That’s why rapes are classified as an emergency and survivors are given top priority so they can be screened immediately for injuries, possible infections and sexually transmitted diseases.”
    Next, she added: “It is important to instill in the woman’s mind that it was not her fault. Most survivors think that they brought about the rape because of something they did or did not do. They know that they would get blamed for it. In fact, women are more concerned about what their families or boyfriends or husbands would say so most of them would rather not report the rape itself.”
    Justice must be served
    Helping rape victims recover also requires that justice is served, Lopez said. But care must be taken so that the process is not traumatic, she said. In most cases, the victims feel they’re on trial themselves.
    Nicole said she was ready for all that. “I am only fighting for my dignity and that of my family,” she said. “I just hope people would support me in this struggle. Please don’t judge me too harshly. I’m only seeking justice.”

  17. Kitty said,

    January 20, 2007 at 1:11 pm

    Mills said he befriended Nicole and her family in Zamboanga City in July 2005. He recalled frequenting the café run by the victim’s family inside a Philippine military base in Zamboanga City whenever the USS Stockham docked to get supplies.

    THE VISIT to the Subic Bay Freeport on Halloween night was supposed to be a family outing — until it turned into a nightmare.
    Two elder brothers had dropped off 22-year-old Nicole — not her real name — at a bar. According to the victim’s counsel, Evalyn Ursua, Nicole was accompanied by her 24-year-old half-sister and an American serviceman, a longtime family friend, while her 12-year-old sister stayed behind in the hotel.

    The victim, a native of Zamboanga City and manager of a Food Haus in Southern Command, Zamboanga City came to Subic Bay on Oct. 30 on board a Honda Civic, which she and siblings rented in Manila.
    In her statement executed before Administering Officer on Nov. 2, the victim said she arrived from Zamboanga to Manila and from there rented a car to Subic Bay with siblings Anna Liza (24); Ma. Carmela, 12; Ricsan, 24; and Ryan, 23. They checked in at Grand Leisure Hotel reserved by a friend, a certain Chris Mills from USS Stockholm.
    On the night of the same date, the siblings went to dinner at a restaurant here with a certain Carlos Ocacio, another US serviceman, go bar-hopping to different entertainment facilities at about 10:30 until past 11 p.m. at Neptune Club then returned to the hotel to retire for the evening.

  18. Kitty said,

    January 20, 2007 at 1:14 pm

    ‘Bribe offered to silence us’ — witnes s
    The family of the 22-year-old Filipino woman who filed rape charges against four United States military servicemen was offered an undetermined amount of money in exchange for the dropping of the case against the accused.
    Ana Lisa Franco, the stepsister of the complainant, during the continuation of her testimony, yesterday told the Makati Regional Trial Court (RTC) that one of the officials of the Subic Bay Metropolitan Authority (SBMA) approached them and offered money to settle the charges against the US Marines, but that she had refused it.
    She identified the alleged “mediator” as Ben Natividad, executive assistant of SBMA chief Feliciano Salonga.
    Franco said the offer was made on Nov. 2, 2005, the day after the alleged assault, at the Investigation and Intelligence Office (IIO) of the SBMA.
    Private prosecutor Evalyn Ursua, for her part, said, “There was an effort to silence the family. There was an offer of payment (made) to them although it (amount) was not specified.”
    She added the person
    who allegedly offerred settlement if it was intended for giving up the case against Lance Cpls. Daniel Smith, Chad Carpentier, Dominic Duplantis and Keith Silkwood.
    “The witness (Franco) did not say how much, but it happened inside the IIO in SBMA where they were asked to just settle the case,” Ursua said.
    The prosecutor stressed Franco’s testimony regarding alleged settlement only disproved all rumors circulating against the girl’s family that they are just interested in money.
    “This just proves that the family is not after settlement of any amount,” Ursua added.
    She pointed out the circumstances surrounding the “offer” was kept secret by Franco and “Nicole,” the complainant, for fear of retaliation against their family.
    Jose Justiniano, Silkwood’s lawyer, said the first time he heard the name Natividad was when Pacquito Torres of SBMA’s IIO informed him Natividad had indicated that six Americans were being charged with rape.
    The defense also tried to discredit the testimony of Franco by casting doubts on her claim that Nicole was already drunk when she was taken out of the Neptune Club, loaded into the Starex van where she claimed she was raped and dumped half-naked into a parking lot.
    Franco admitted she and the complainant had taken four types of drinks ordered for them by US Navy friend Christopher James Mills despite the fact that those were “unfamiliar” to them.
    She said she had seen her dizzy sister consume half a pitcher of “bullfrog” straight while being cheered on by unfamiliar Americans.
    Justiniano, however, claimed the fact that the sisters testified they already felt dizzy after consuming several rounds of liquor and still refused to go back to the hotel speaks something out of normal.
    “It’s not normal for a person to go to an unfamiliar club, much more to order and drink wine that is unfamiliar to them,” he said.
    “If they were not drinkers, they (sisters) should have taken fruit juice drinks instead of allowing others to order unfamiliar drinks for them,” the defense lawyer added.
    Ursua, however, said the questions and issues raised by the lawyers of the accused were immaterial to the case, such as Justiniano’s delving into the details of the drinks ordered by Franco and Nicole the night of the alleged assault.
    She added being drunk and having a good time are not relevant to the crime of rape.
    Ben Gines Jr.

  19. Kitty said,

    January 20, 2007 at 1:17 pm

    ‘We’ll fight to the end’

    First posted 01:20:21 (Mla time) 2006-09-17
    Volt Contreras Armand Nocum

    THE Filipino woman accusing four US Marines of rape stood firm yesterday against any settlement of the case and wondered whether the government was “really interested in getting justice” for her.

    In a statement issued last night, the 22-year-old “Nicole” declared: “My fight will be until the very end.” It was her second time this week to speak out over what she and her mother said was the “incompetence” displayed by the public prosecutors assigned by the Department of Justice to argue her case, particularly during the cross-examination of her alleged rapist, Lance Cpl. Daniel Smith.

    The two-page statement faxed to the Inquirer was issued a day after Nicole’s mother claimed that Senior State Prosecutor Emilie Fe de los Santos, the chair of the public prosecution panel, “proposed” as early as July that the complainant enter into a settlement with the accused. (Reached by the Inquirer in Biliran on Friday, De los Santos issued a vehement denial and described the claim as “blackmail.”)

    “I am very much interested in pursuing my case,” Nicole said in the statement. “From the very beginning, my mind was set to pursue the case and not be influenced by other people, by any means.”

    She said she had called for the replacement of four of the five public prosecutors because she was “extremely disappointed” with the cross-examination of Smith by Nolibien Quiambao, the lone man on the team.

    “It was obvious that the state prosecutor did not prepare for it. Even the judge questioned [him] if he was doing a cross-examination. I begged the senior state prosecutor to allow my private prosecutor (Evalyn Ursua) to cross-examine, but she told us no,” Nicole said.

    The state prosecutors are in charge of the criminal aspect of the case; Nicole’s private lawyers (Ursua, Honorato Aquino and Anna Liza Gonzales) are handling the civil aspect.

    Silent on Bolante

    Nicole said she was standing by her mother’s statement on Friday that a proposal to settle was made by De los Santos.

    “I believe in my heart that my mother did not lie,” she said, adding in Filipino: “She kept this from me for a long time because she didn’t want me to be dismayed and lose courage.”

    But Nicole’s statement was silent on her mother’s claim that, according to De los Santos, the highly charged rape case would be “traded off” with the case of former Agriculture Undersecretary Jocelyn “Joc-joc” Bolante if Nicole chose not to settle.

    (Bolante, the purported architect of the P728-million fertilizer fund scam linked to alleged election machinations in 2004, is under detention in the United States, fighting extradition.)

    Of the trade-off claim by Nicole’s mother, Justice Secretary Raul Gonzalez yesterday angrily said on the phone: “That’s baloney, that’s totally false, that’s untrue.”

    Gonzalez pointed out that at the time De los Santos supposedly told Nicole’s mother about the trade-off, the Bolante case was not yet a big issue.

    He said the rape trial had now taken “a political angle,” which “explains why they are suddenly linking” the two cases.

    “The direction there is somebody from the opposition taught them to hit GMA (President Macapagal-Arroyo) with this issue,” he said.

    Who’s lying?

    Gonzalez issued a “challenge” to both Nicole’s mother and De los Santos to undergo a lie detector test to determine who was lying.

    He said Nicole’s mother could even take the test at the US Embassy or with independent “truth verifiers” if she did not want to undergo the procedure at the National Bureau of Investigation, an agency under the DOJ.

    Besides, he said, “we have not been talking about this Bolante case at the DOJ, so there is no reason for De los Santos to discuss it [with Nicole’s mother].”

    Gonzalez said the attention given Nicole and her camp could have gone to the mother’s head.

    “They’re so pampered by the public… They think they are so much of a celebrity that whatever they do, the prosecution will kowtow to them. What they are doing is so unkind, and I resent it,” he said.

    Gonzalez said on Friday that he might be ready with a new panel of prosecutors by next week, after he had evaluated Nicole’s letter of request to Chief State Prosecutor Jovencito Zuño.

    But yesterday, he appeared to have changed his mind.

    ‘I’m not that stupid’

    “We should first listen to the statements of the prosecutors…” Gonzalez said. “We cannot have our prosecutors used as punching bags. We cannot just replace them simply because somebody says they do not like the way they look.”

    In her statement, Nicole lashed out at Gonzalez who had said on Friday that she might again be “imagining things.”

    Noting that Gonzalez had “expressed from the start his disbelief in my claim of rape,” Nicole said: “Mr. Secretary, I did not imagine the rape. Since your people are supposed to be prosecuting my rapists, you should never have said that.

    “I’m not that stupid to have put myself in this predicament by making things up.

    “I only want people to know the truth and achieve justice for what Daniel Smith and the other accused had done to me. Fighting for my dignity as well as the dignity of my country and standing up firmly for the case is the most courageous thing that I have ever done.”

    Nicole, a college graduate from Zamboanga City, also said that having come this far, “why would I think of a settlement?”

    She said Ursua had also told her that she had “the option to settle” and that this was her “right.”

    “[But] I said to her that to settle is to think only of the short term, and I don’t want to blame myself that I did not fight,” Nicole said, adding:

    “I know I will be bothered by my conscience someday if I didn’t fight and seek justice.”


    Speaking on Vice President Noli de Castro’s radio program, “Para Sa Iyo Bayan,” Hazel Valdez, the only one among the state prosecutors the complainant wanted retained, said Nicole’s mother had failed to appreciate the rules of court as well as the sacrifices of the team.

    Valdez said she and her colleagues were stunned by the claims of Nicole’s mother.

    She said she did not believe that De los Santos had proposed a settlement. And if there had been “an instruction for a trade-off,” she said, the team would not have pushed through with the case.

    She also said that among the public prosecutors, only she had been reaching out to Nicole and her family, but “on a professional basis.”

    Valdez said there was no basis for Nicole’s request that the DOJ replace the four other state prosecutors.

    She also said the claim by Nicole and her mother that Quiambao did not ask the right questions during his cross-examination of Smith was incorrect.

    “They should understand that not everything they want is acceptable in court,” Valdez said. “The record will bear us out that of the questions they wanted asked, some were objected to by the defense and sustained by the judge; the other questions were objectionable, or not allowed under the rules.”


    Valdez said it was natural for Smith to defend himself and portray Nicole in a bad light, in the same way that the complainant painted a negative image of the accused.

    “Maybe [they] are just over-reacting,” she said.

    Asked by De Castro if she would stay on as a prosecutor in the case, Valdez reiterated that it was up to the justice secretary to decide the matter. With a report from Cynthia D. Balana

  20. Kitty said,

    January 20, 2007 at 1:18 pm

    Nicole’s ma bares ‘offer’

    First posted 02:05:34 (Mla time) 2006-09-16
    Volt Contreras

    THE mother of the Filipino complainant in the Subic rape case has not only assailed the supposed incompetence of the public prosecutors but also alleged that their leader had “proposed” a settlement with the accused US Marines.

    Speaking with reporters a day after she and her daughter “Nicole” walked out of the courtroom of Makati Judge Benjamin Pozon only minutes before the 1 p.m. hearing was to start, the mother claimed that Senior State Prosecutor Emilie Fe de los Santos began floating the purported proposal in July and warned that if Nicole’s family passed up this option, “your daughter’s case might be traded off with the Bolante case (kung hindi, baka yung kaso ng anak ninyo maging kapalit ng Bolante case).”

    It was a reference to former Agriculture Undersecretary Jocelyn “Joc-joc” Bolante, the purported architect of the P728-million fertilizer fund scam, who is now being held in a US detention center.

    The mother said De los Santos gave no indication of what this possible “trade” could mean in connection with Bolante’s case.

    Reached by phone in Biliran, an enraged De los Santos denied having pushed for a settlement.

    “It was her (Nicole’s mother) who asked me for advice in case there will be a negotiation, what will be its effects,” De los Santos said, adding:

    “Ngayon binabaligtad niya (Now she’s turning it around). That’s a lie. They asked for advice and I merely explained the procedure, but that doesn’t mean I was pushing for the negotiation.”

    The mother was combative, but she later dissolved in tears during an hourlong meeting with a group of reporters at a restaurant in Quezon City in the early hours yesterday.

    Back on the stand

    Nicole, her private lawyer Evalyn Ursua, and her therapist Dr. June Pagaduan-Lopez were present at the meeting.

    The mother also said the lead prosecutor in the landmark case had wanted to put Nicole back on the stand, for her to tell the court that “she wants out, she’s already tired, and that her lawyer can’t do anything about it.”

    Nicole completed her testimony in July.

    The mother said she decided to go public only now—or about two months later—about De los Santos’ purported moves after another public prosecutor, Nolibien Quiambao, came “unprepared” for her cross-examination last Monday of the principal accused, Lance Cpl. Daniel Smith.

    “I observed the public prosecutors first … and my daughter and I went sleepless for many nights this whole time,” the mother said in Filipino.

    She said Quiambao’s performance in court on Monday got her “worried” because it “pieced together” what De los Santos had supposedly told her.

    “Nilaro niya kami (She toyed with us),” she said, referring to De los Santos.

    Fertile imagination

    As to the rape case’s supposed link to the outcome of the Bolante case, De los Santos was emphatic and let drop a few invectives before saying: “I don’t know where they got that; they have a fertile [imagination].

    “In the first place, I would be at my craziest to claim having anything to do with the Bolante case. It’s not even at my level [in the Department of Justice].

    “I may not be a darling of the press, but nobody can question my credibility in my 13 years in the service. I may be mataray (shrewish), but I’m not a liar.”

    De los Santos also all but confirmed the long-rumored rift between the public prosecution panel and Ursua, Nicole’s private lawyer, whom the prosecutor described as a “militant.”

    “We all know Ursua is behind all this,” she said in Filipino.

    She hinted at a full-blown showdown when she returns to work on Monday: “They will get it from me when I come back.”

    De los Santos, who said she was in Biliran attending the wake for her slain kumpadre, former Gov. Danilo Parilla, also questioned the timing of the outburst from Nicole’s mother.

    She said it was tantamount to “blackmail” and a breach of the confidentiality of lawyer-client communications.

    De los Santos was not at the courtroom on Thursday when Nicole and her mother walked out of the Makati City Regional Court’s Branch 139.

    Late Thursday night, Nicole—with her mother, Ursua and Lopez—called a press conference in Quezon City to report that she had sent a letter to the DOJ seeking the replacement of all her public prosecutors except Hazel Valdez.

    She said the letter had been ready the night before.

    Lull in the hearing

    Nicole’s mother likewise claimed that:

    De los Santos also approached Nicole’s elder brother about the “settlement.’”

    De los Santos mentioned the Bolante case during a lull in the hearing where supposed prosecution witness Timoteo Soriano, the driver of the van where the purported rape took place, did not show up. (That hearing was on July 17, or 10 days after Bolante’s arrest in Los Angeles.)

    De los Santos said the families of the accused US Marines had agreed to a settlement and that Nicole’s mother should say “what you want in writing.”

    According to De los Santos, Nicole and her siblings could also choose to withdraw from the public eye by going to the United States.

    The plan was to have Nicole telling the court she wanted out, preferably before the defense could begin its presentation of evidence.

    De los Santos parried all these almost point by point, reiterating that she and Nicole’s mother had exchanges about a possible settlement only because the latter had “asked for advice, and I was explaining the procedure.”

    “If they wanted to negotiate, then they have to put it in writing … and Nicole has to take the stand again to say that she’s desisting. What’s wrong with that? That’s procedure,” the prosecutor said.

    ‘For the Filipinos’

    Nicole’s mother was running the family-owned canteen in the Army’s Southern Command camp in Zamboanga City when her daughter, while vacationing with two siblings at the Subic Bay Freeport, was allegedly raped by Smith on the night of Nov. 1, 2005.

    She has been a civilian supervisor for 25 years in the Philippine Navy where Nicole’s father, now deceased, was an officer. She has since remarried.

    In yesterday’s interview, while saying that it was up to Nicole to pursue the trial and that both she and her daughter were “still very much interested” in the case, she pointed out that winning it was “no longer just for us but for the Filipinos.”

    “Where is our government now?” she cried. “We were given public prosecutors, but you wouldn’t know where their loyalty is.”

  21. Kitty said,

    January 20, 2007 at 1:19 pm

    Nicole’s mom hits Arroyo for siding with US

    By Tarra Quismundo
    Last updated 10:35pm (Mla time) 12/25/2006

    MANILA — Describing her family’s continuing fight for justice as a bout between David and Goliath, the mother of rape victim “Nicole” on Monday broke her silence and scored the government for siding with the US on the custody dispute over her daughter’s convicted rapist.

    Reached through phone on Monday, Nicole’s mother let out her anger at the government for concurring with the US claim of custody over Lance Cpl. Daniel Smith, an issue that had strained diplomatic relations between the two countries.

    “Galit na talaga ako… Sana patas ang laban, pero ngayon nakikialam na si Gloria (President Macapagal Arroyo)… Sana man lang kahit papaano ipagtanggol niya ang Pilipino (I am really angry… I just wish we fight fair, but now Gloria is meddling with it… I just hope somehow she could defend the Filipino),” she said.

    “Our fight is like that of David and Goliath. We never got any help from the government throughout this fight, we never asked anybody for help. It was my family that worked for this… And that VFA? (Visiting Forces Agreement), it’s only them (government) that benefits from it,” added the long-time civilian employee of the Philippine Navy.

    Nicole, her family and legal team have been opposed to the US retaining custody over Smith, the 21-year-old Marine convicted and jailed on Dec. 4 for raping the Filipino woman last year. The legal dispute is now pending before the Court of Appeals.

    The government, meanwhile, through the justice and foreign affairs departments and Malacañang, have been asserting the right of the US to maintain custody of Smith while he appeals his conviction, in compliance with the country’s obligations under the VFA.

    The US military recently announced the cancellation of the RP-US war games next year because of the custody dispute. In light of the announcement, the Office of the Solicitor General filed before the appellate court on Friday another agreement between the Philippines and the US for Smith’s return to the US Embassy, with Philippine authorities given “inspection rights.”

    The VFA, a treaty that spells out legal protection of US troops while engaged in military exercises here, has been invoked by Smith, the US Embassy and the Philippine government in insisting his return to US authorities. Under the agreement, the US must retain custody of American soldiers on trial in Philippine courts throughout the duration of judicial proceedings.

    Both Philippine and US authorities have said the provision applied until the end of the appeals process, which Smith intends to pursue.

    But Makati Judge Benjamin Pozon, in dismissing Smith’s petition for a return to American custody on Dec. 13, ruled that “the custody of accused Smith by the US military authorities was terminated after the completion of the trial and rendition of the judgment of conviction.”

    Pozon committed Smith to the Makati City Jail (MCJ) on Dec. 4, when he found him guilty of raping Nicole at the back of a Starex van during a short ride at the Subic Bay Freeport before midnight on Nov. 1, 2005.

    As jail officials explained that the only convict at the MCJ could not be mixed with crime suspects detained there, Smith was initially held at the records section of the jail house and later transferred to what used to be a storage room, where he is under round-the-clock watch of US military officers.

    While her daughter achieved a partial victory with Smith’s conviction, her mother could only lament that her family still has to go another struggle.

    “I spent millions and this will happen? This is unfair… We spent our own money for this case then he [Smith] will not be jailed? Now, our enemy is our own government, not just the Americans,” she said, spilling her anger in Filipino.

    She said she had already spent around P2.3 million throughout the yearlong trial to pay for fare expenses in bringing herself and Nicole’s siblings to Manila from their native Zamboanga and back, Nicole’s household expenses in the Metro Manila house where she had been staying, food expenses, the duplication of pleadings and court transcripts,
    among others.

    “I have spent my savings out of my 25 years of service with the human resources department [of the Philippine Navy]. I have several loans I have yet to pay for. I have sold property. My daughter working in Italy could not even call me this Christmas day because all she has earned in the past month she sent me for our expenses during the trial,” she said.

    “My children now, they have nothing special this Christmas… We used to have grand Christmas celebrations but now, we can’t,” she continued. She added that her family’s remaining saving grace was her canteen at the Zamboanga military base, one frequented by both Filipino and US servicemen.

    She added that the P100,000 worth of damages the court awarded her daughter, still unpaid for as Smith is bent on appealing his case, could not compensate for the financial and emotional trauma her family experienced because of the case.

    “Yung P100,000, pang-taxi ko lang ‘yon eh… Ganon na lang pala kamura ang babae sa Pilipinas ngayon, ganon na lang pala kamura ang dangal ng babae ngayon (That P100,000 would only cover my taxi expenses. So, this is how cheap a woman is in the Philippines. This is how cheap a woman’s honor is),” she said.

  22. Kitty said,

    January 20, 2007 at 1:21 pm

    Subic rape victim, family running out of money

    The Philippine Star 06/22/2006

    The legal battle between the 22-year-old Filipina and the four US Marines whom she has accused of raping her is costing her and her family money.

    All four accused US Marines — Lance Corporals Daniel Smith, Dominic Duplantis, Keith Silkwood, and Staff Sergeant Chad Carpentier — have been attending the trial proceedings since June 2.

    Twelve days into the marathon hearings, “Nicole” now owes stenographers at the Makati City regional trial court (RTC) some P10,000.

    Private prosecutor Evalyn Ursua said the legal funds “Nicole” has been receiving from supporters are not enough, and are fast running out.

    Ursua said copies of stenographic notes alone, which provide prosecution lawyers with a transcript of each hearing, cost more or less P2,000 each trial day.

    “It’s P10 per page,” she said. “We have to buy it. Transcripts cost us P2,000 a day which translates to P8,000 a week.”

    Ursua said paying for copies of stenographic notes is just “the tip of the iceberg,” since prosecuting the Subic rape case will require funding for other litigation costs.

    “That’s plus transportation of witnesses and lawyers plus meals plus paper, photocopying, ink, mailing and investigation expenses,” she noted.

    Six different stenographers from other Makati courts record the proceedings at the Subic hearings, according to Judge Liza Marie Picardal-Tecson of Hagonoy, Bulacan metropolitan trial court, former clerk of court of Makati Judge Benjamin Pozon, who is hearing the rape case.

    Tecson said at least two stenographers attend each hearing so that the second can fill in for the other so that each and every detail is recorded accurately.

    The Rules of Court allow stenographers to charge for copies of stenographic notes as an added income, while a percentage goes to the Office of the Clerk of Court of the Supreme Court, she said. — Michael Punongbayan

  23. Kitty said,

    January 20, 2007 at 1:22 pm

    Nicole turns 23; her wish: Justice

    First posted 02:45:34 (Mla time) September 23, 2006
    Tarra Quismundo

    WHEN “Nicole” turned 22 last year, she marked the occasion with a memorable party at her family’s canteen in the company of her closest friends, most of them US Marines.

    Her 23rd birthday yesterday was a total turnaround, with her now up against four US Marines in a landmark rape case that Filipino women’s groups consider as a symbol of the prevailing American arrogance over a former colony.

    There was no prior announcement that Nicole planned to attend yesterday’s hearing. But an hour before the 1 p.m. hearing was to start, she showed up with her mother and 23 of her sympathizers at the back of the old Makati City Hall, where hearings have been held since the trial began in June.

    The visit was quite brief.

    Members of Task Force Subic Rape, a women-led coalition of 17 organizations, gave her the biggest butter cake they could get. On it was inscribed: “Justice for Nicole, Justice for our Nation.”

    Her face barely concealed by a fisherman’s hat and sunglasses, she blew out her birthday candles and made her only wish—justice.

    Later in a phone interview with the Inquirer, Nicole said: “I have come to better know how [US Marines] really are, although I am not saying they are all like that. There are others who know how to respect women. But somehow, I became dismayed with them [in general] after what happened to me.”

    She said that despite it being her birthday, she could not help but keep her mind on the case, especially in the light of her unsettled dispute with the public prosecutors arguing her case.

    “It is hard to celebrate, to be happy, with all that is happening. I know that there are still many who believe in me, who support me, and I appreciate that. But I am still sad because I still think about the case,” she said, adding:

    “I hope that even if it’s the defense now presenting evidence, I will get justice.”

    And how has she changed since her last birthday?

    “I think I am more mature now in that I chose to fight instead of just being silent. I want to show them that I can fight them,” Nicole said.

  24. Kitty said,

    January 20, 2007 at 1:24 pm

    Thursday, October 05, 2006
    Nicole’s mom insists prosecutor offered ‘new life in US’ for them
    MANILA — The lead prosecutor handling the Subic rape case has promised a new life in America for Nicole and her family if she will agree to a compromise settlement of the case.

    In a sworn statement submitted to Justice Secretary Raul Gonzalez Jr., Nicole’s mother said Senior State Prosecutor Emilie Fe delos Santos invited her to a meeting in a coffee shop in Makati last July 17 at 5 p.m. to discuss the proposed settlement.

    In a letter, Nicole, who was allegedly raped by four US servicemen, appealed Wednesday to the justice department to replace a team of government prosecutors handling the case, which the justice secretary refused.

    The affidavit of Nicole’s mother and brother detailing the alleged attempts to settle the case out of court were attached in her letter request to replace the government prosecutors assigned to her case.

    The affidavit has been turned over to the National Bureau of Investigation (NBI), which was tasked to look into allegations that the prosecutors had offered to settle the rape case against the US Marines in exchange for the freedom of former agriculture undersecretary Jocelyn “Joc-Joc” Bolante.

    Bolante, alleged architect of the P728 million fertilizer fund scam, is currently detained in the US in connection with his cancelled B1-B2 visa.

    During that meeting, delos Santos supposedly told the complainant’s mother that the family of the four accused US servicemen have agreed to a settlement.

    The state prosecutor reminded her about Nicole’s testimony in open court that because of the rape, she’s ashamed of going back to Zamboanga City and she wanted to reside in another place.

    She further narrated that delos Santos persuaded her to name a sum of money, which her family could use should they decide to migrate to the US to start anew.

    She also said delos Santos further told her that they should agree to settle before US authorities put in the pressure in exchange for Bolante’s freedom.

    When she asked if other members of the prosecution panel knew of the proposed “amicable settlement” of delos Santos, the mother said no and saying she was the only one privy to it.

    Last July 28, delos Santos again called her up and told her to immediately apply for a US visa at the embassy to expedite the processing of her immigration papers.

    She said she decided not to tell her daughter about the meeting for fear that it might dishearten her.

    Last Sept. 11, when principal accused Lance Corporal Daniel Smith was to be cross-examined by the prosecution, she asked delos Santos to allow private counsel Evalyn Ursua to cross-examine him but the lead counsel refused and told her that it was the instruction of Chief State Prosecutor Jovencito Zuño.

    Their dissatisfaction with the performance of the panel prompted the complainant’s camp to ask the justice office to replace the members of the panel except for State Prosecutor Hazel Valdez but Gonzalez rejected it.

    The justice department likewise denied forging any agreement to settle the rape case against the four US Marines — Smith, Chad Carpentier, Dominic Duplantis and Keith Silkwood — adding that some anti-administration groups such as Gabriela may have been “peddling lies” to the family of Nicole to inflame the situation.

    Gonzalez earlier ordered the NBI to look into the allegations of a trade-in of the case for Bolante’s release to erase the negative public perception generated by the dispute between the complainant and the state prosecutors.

    Among those covered by the investigation were Nicole’s mother and brother as well as the five-member panel led by delos Santos and public counsels Valdez, State Prosecutors Noli Quiambao, Elizabeth Berdal and Lagrimas Agaran. (Sunnex

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