‘Most drunk’ GI’s tale another lie—prosecutor

Friday, Sept. 22, 2006

The prosecutor, who grilled today the fourth accused US Marine to take the stand in the Subic rape trial, dismissed the testimony as another lie.

Echoing her remark about yesterday’s witness, lawyer Emilie Fe delos Santos head of the prosecution panel, said Lance Corporal Dominic Duplantis lied to the court to protect his co-defendants.

Delos Santos yesterday accused L/Cpl Keith Silkwood of lying for the sake of his liberty buddy L/Cpl Daniel Smith.

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Witness is lying—prosecutor

Thursday, Sept. 21, 2006

The public lawyer who cross-examined today one of the four accused in the Subic rape trial alleged that the witness was lying.

Senior prosecutor Emilie Fe delos Santos repeatedly cited instances where Lance Corporal Keith Silkwood supposedly lied to the court to save co-accused and prime suspect L/Cpl Daniel Smith.

Smith purportedly raped a 22-year-old Filipina in a moving van while Silkwood, L/Cpl Dominic Duplantis and Staff Sergeant Chad Carpentier egged him on.

Delos Santos noted that Silkwood left out some information in the counter-affidavit he submitted during the preliminary investigation of the case. She also accused Silkwood of giving the court a “false and fabricated testimony.”

On direct examination by his lawyer, Jose Justiniano, Silkwood testified that at 1 p.m. of November 1, 2005, he disembarked the USS Essex with Smith as his liberty buddy.

Silkwood defined liberty buddy as someone you sign out with and look after to during liberty period.

He said he, Smith and other US Marines went to a market to withdraw money but since the automated teller machines there were offline, they proceeded to a nearby casino where they could get cash.

The casino was too crowded so they transferred to another one just across the street. They gambled and drank there until 7 p.m. then went to Dewey’s bar and stayed there for two to three hours.

They proceeded to Neptune club around 9:30-10 p.m. and occupied a table near the dance floor. Around 11:30 p.m., he met Carpentier who told him to round up some Marines so they could get back to the ship in time for their 12 midnight curfew.

Silkwood started to look for Marines and consequently ran into Duplantis and Smith. He saw that Smith was “talking and flirting” with a Filipina, which he later identified as Nicole.

Nicole, Silkwood said, was sitting on Smith’s lap. She was in a slouched position with her back against Smith’s chest.

Silkwood then relayed to Smith what Carpentier said and then he started to walk out of the club. Duplantis, Smith and Nicole followed. They walked to the van but it was locked and the driver, Timoteo Soriano, wasn’t there.

When Soriano arrived, he entered the van and unlocked all doors. Smith opened the side door and Nicole got in. They then occupied the backseat. Duplantis and Silkwood took the middle row while Carpentier sat next to Soriano.

In the van, Smith and Nicole were “kissing and being flirtatious and kind of making out.” Silkwood said he didn’t do anything about it because he thought it was just a “normal lovemaking.”

He also said that they pulled over near a Yellow Cab pizza parlor because they saw two Marines, Cpl. Corey Burris and L/Cpl. Albert Lara. Burris and Lara approached the van and opened the side door.

Silkwood added that he and Lara laughed at Duplantis who was so drunk that time. He continued that Burris and Lara did not board the van because it was full.

He further recounted that after the side door closed, he heard Smith told Nicole that “he wouldn’t be able to finish.” Nicole then supposedly asked, “Are you done already?” and Smith repeated what he said. Silkwood said he quit listening after that.

He continued that the van stopped at the main pathway to the ship. The place was crowded and around 20-30 people were there.

Duplantis exited the van first, then Silkwood, followed by Nicole and Smith. Smith assisted Nicole, whose pants were still “mid-thigh low.”

At this point, Justiniano asked Silkwood about Joseph Khonghun’s testimony that Nicole was carried out of the van like a pig. Silkwood denied it and the allegation that he held a beer bottle and poured out its content on the sidewalk.

He then said that leaving Nicole behind, the three of them walked towards the ship and got there a few minutes past 12. Smith was the first to arrive, then himself and Duplantis.

Meanwhile, on cross-examination, Silkwood narrated that in the middle of their ride, he saw movements at the backseat.

“Next thing I know, the girl was lying on her back and Smith was halfway on top of her,” he said, adding that he saw this only through his peripheral vision. He neither glanced at nor watched them, he continued.

Silkwood also said that he thought it was not a “big deal” so he didn’t tell anyone in the van about it. “It wasn’t my business,” he added.

Delos Santos asked Silkwood if he talked with Burris and Lara. Silkwood said no, prompting the prosecutor to comment that he was lying because he testified earlier that he joked with them about Duplantis.

She also pointed out that Silkwood did not state in his counter-affidavit what he told US Naval Criminal Investigative Service agent Bruce Warshawsky during an interview at Mandarin Hotel in Makati.

Quoting from Silkwood’s statement to the NCIS, delos Santos read that Burris and Lara exclaimed ‘Oh my gosh! This is happening?’ when they saw Smith having sex at the backseat of the van.

Delos Santos said that the noninclusion of this information showed that Silkwood was lying.”

She also charged Silkwood of “deliberately omit(ting)” it because it would not help him and the other accused.

Silkwood denied the allegation. He said it was not intentional and he thought it was not important.

Delos Santos reminded Silkwood that he was under oath when he executed the statement. Silkwood then countered, “There are no lies in there, maam.”

He further testified that when they reached the pier, someone shouted, “Get that bitch out of the van!” though he was not certain if it was he.

He also said that when Nicole alighted from the van, she sat down on the curb and started yelling, “I’m not a bitch!”

He added that he noticed Nicole having difficulty pulling up her pants. He said he thought either “Nicole was too drunk or she was just having a hard time.”

Meanwhile, delos Santos made Silkwood admit that he had not met Khonghun prior to the latter’s testimony in court and that Silkwood had no ill feelings against him.

Delos Santos pointed out that if Khonghun had no reason at all to testify against Silkwood, then Silkwood’s testimony must be “false and fabricated.”

Then referring to Silkwood’s earlier statement that what he saw was a “normal lovemaking,” delos Santos asked: “Do you think having sex at the backseat of a van in full view of other passengers normal?”

Silkwood answered that it appeared to him to be so and that he was not thinking of the location when he said that.

Laying the basis for her next question, delos Santos reiterated Silkwood’s testimony that during liberty, he was obliged to remain with and protect his liberty buddy.

“Because you are buddies, you cannot take a position different from accused Smith,” delos Santos said.

Justiniano rose to object, but Pozon only ruled that delos Santos specify what she meant by “position.”

“You said that you have to protect your buddy during liberty. Now that all of you are accused of this case, you can’t testify against them,” she continued.

Silkwood again denied the allegation, saying “I can do what I wanna do.”

For her last question, delos Santos asked if Silkwood knew why Nicole would file a rape complaint against them. Silkwood said he could only guess but he didn’t know for sure.

Meanwhile, upon Pozon’s questioning, Silkwood recounted that he did not see Carpentier alight the van when they were dropped off near where the ship was docked.

Silkwood continued that the van left shortly after they got out of it. He also said that he did not see anybody milling around the van or giving serious attention to Nicole.

He also admitted that he consumed around four bottles of beer that night but he was not drunk. He added that it was Duplantis who was the “most drunk” among the four of them. Duplantis, he said, had his head bowed down almost all throughout the ride.

Pozon then asked Silkwood if he saw any resistance from Nicole when she was still in the van.

Silkwood said Nicole did not struggle or scream. She did not punch or kick Smith, or prevent Smith from making love to her, he added.

He also said that based on what he saw, the intercourse was with consent from Nicole. He continued that Nicole was not mad at anyone of them, not even at Smith.

When asked again why Nicole would file a case against them, Silkwood said “Maybe she got upset of that bitch part… Maybe she was put in a situation and somehow it was easier for her to say she was raped.”

Pozon also clarified if there had been any trouble between them and the two security guards at Neptune or between Soriano and the guards.

Security guards Tomas Corpus, Jr. and Gerald Muyot testified that they saw Smith carried Nicole to the van in piggyback style. Their testimonies contradicted Smith’s and Silkwood’s statement that Nicole got into the van on her own.

Silkwood answered negative to both, adding that they even gave tips to Corpus and Muyot.

Pozon then asked: “Why should the guards testify differently as to how Nicole boarded the van?”

Silkwood said he had no idea.

 

Happy 23rd

 

Birthday, Nicole!

 

 

Nicole to Gonzales: ‘Too late’

A week after she appealed that state prosecutors handling her case be replaced, Nicole sent another letter today to the justice secretary, this time saying that even if he would grant her request, it would be too late.

Nicole said the decision of DOJ Secretary Raul Gonzales would no longer make a difference once the defense panel finishes presenting its witnesses.

Defense planned to present six witnesses: the four accused, a US Marine who claimed to be Nicole’s friend, and an obstetrician-gynecologist.

Of the six, only accused Lance Corporals Keith Silkwood and Dominic Duplantis have not taken the stand yet. Others were done with their testimonies, save for Dr. Teresita Sanchez who still have to testify for cross-examination.

In her letter, Nicole wrote in detail how the poor performance of the prosecutors disappointed her especially during the September 11 hearing.

“I was extremely dismayed, disturbed and alarmed upon witnessing one of the state prosecutors cross-examine accused [L/Cpl Daniel] Smith,” Nicole said.

Nicole said that lawyer Nolibien Quiambao was “obviously unprepared” for even Judge Benjamin Pozon had to reprimand him several times for merely repeating what Smith stated.

She then revealed that before the September 11 hearing, her public and private lawyers already agreed that senior state prosecutor Emilie Fe delos Santos would handle Smith’s cross-examination.

“Why did she not cross-examine Smith?” Nicole asked, adding that it disappointed her that a junior prosecutor like Quiambao would cross-examine the prime suspect and the “most critical witness” of this case.

She continued that Quiambao is often absent or never takes notes during hearings, and sometimes leaves the court after staying briefly.

Nicole also said that delos Santos turned down her plea to let private prosecutor Evalyn Ursua help conduct the cross-examination. Delos Santos purportedly told her that Ursua could no longer cross-examine.

“I am the victim here. I have the right to be represented. I cannot stand the fact that they have excluded my private lawyers,” Nicole said.

She then added, “What is the sense of hiring the services of my lawyers if they have no participation in the case?”

Meanwhile, Nicole narrated instances when the public prosecutors showed indifference to her feelings as a rape survivor. She recounted that they sometimes scold her and make her stop crying during hearings.

She also wrote that she felt demoralized whenever the prosecutors come to court late or are absent, or when she see them laugh with the defense panel inside the courtroom.

Nicole further stated that state prosecutors treated her with “lack of respect” and that she had no good relationship with them.

“They did not even respect me and how I felt during that time,” Nicole said, adding that the prosecutors should have understood how she felt that time because they have handled rape cases before.

Statement of Support for Nicole and All Women Victim-Survivors of Sexual Abuse

The Women’s Crisis Center is a non-stock, non-profit private institution with a firm commitment to end all forms of violence against women and to work towards a just and humane society. As such we have been actively engaged in empowering women through direct services, education and training and policy advocacy among others.For the past 17 years, we have worked with women survivors of violence. And until now we are still amazed by their strength and will to fight back against the blame, the stigma, and the pressure to conform to the male-centered standards of justice in society, even as our organization strives to help them rebuild their lives.

Sexual abuse, rape, is one of the most traumatizing forms of violence against women – and perhaps the most misunderstood. Or is it because society does not want to understand rape at all? Society owes the victim-survivors justice and healing. The most recent example of this deliberate ignorance on rape is found in the Nicole’s case where she has been tagged as a liar, “ingrata” and having “imagined” it all.

We salute the women like Nicole who chose to speak out against violence. We believe her, and stand by her in her battle for justice and healing. Her struggle in the courtroom goes beyond her personal interests to present society’s double standards with regard to justice, and especially justice for women.

To Nicole’s words, we add our own voices; to her courage we add our strength: She did not imagine the rape.

Women’s Crisis Center

18 September 2006

Open Letter for Nicole

(Bukas na Liham Para Kay Nicole)

Mahal naming Nicole,

Kami ang mga kababaihan sa Women’s Crisis Center ay nagpapahayag ng aming matinding supporta at pakikiisa sa iyong pakikipaglaban sa kaso.

Ang Women’s Crisis Center ay isang pribadong organisasyong nagbibigay ng kumprehensibo at sensitibong serbisyo para sa kababaihan at batang biktima ng karahasan. Sa aming 17 taong pakikiisa sa mga biktima ng karahasan laban sa kababaihan, nauunawaan naming mahirap ang iyong pinagdadaanan sa ngayon. Hindi maraming babae ang naglalakas loob na sumuong sa legal na proseso. Alam nating lahat na ito ay masalimuot lalo na para sa isang babaeng nagahasa.  Hindi lang ang kaso mo ang nililitis kundi kasama pa rito ang ang iyong dangal at buong pagkatao.

Malayo pa tatahakin ng ating lipunan bago tuluyang maintidihan ang mga katulad mong biktima ng karahasan at makapagbigay ng tunay na hustisya at paghihilom. Alam din naming masakit para sa iyo na makita na ang mga taong inaasahan mong magtanggol sa iyo ay siya ngayong bumabatikos sa iyo at sa iyong pamilya.

Sa kabila ng mga batikos sa iyo, kami ay nananatiling naniniwala sa iyo na ikaw ay isang biktima. Humahanga kami sa tatag at tapang ng loob na pinapakita mo sa gitna ng mahirap na prosesong iyong pinagdadaanan.

Kami ay handang umunawa, dumamay at sumuporta sa iyong pakikibaka. Hindi ka man manalo sa korte, panalo ka pa rin sa mata ng kababaihan at ng buong Sambayanang Pilipino.

Women’s Crisis Center
18 September 2006

TOWNS clears controversies raised by state prosecutors

Recent news reports quoting people involved in the Subic rape case, particularly members of the government prosecution panel, alluded to a fund-raising activity of The Outstanding Women in the Nation’s Service (TOWNS) Foundation at the premiere of the ballet “La Bayadere,” which featured Lisa Macuja-Elizalde, last August 11.

As a TOWNS awardee, Lisa offered to donate the proceeds of tickets that TOWNS members could sell.TOWNS Foundation is an organization of outstanding women awarded for their contributions to the nation’s service. Because TOWNS believes that rape is a crime of violence against women, TOWNS undertook to support Nicole in her quest for justice. Among the TOWNS members most directly involved in this case are Atty. Evalyn Ursua and Dr. June Lopez who chose to volunteer their services.

In behalf of the members of TOWNS Foundation who have openly declared support for justice to prevail in the Nicole case, and to set the record straight, we state the following:

1. TOWNS fully supports Nicole’s struggle for justice in whatever forum in court or in the eyes of the Filipino public.

2. TOWNS is committed to work for justice and truth and as such, stands fully and steadfastly behind Atty. Ursua and Dr. Lopez and continues to believe in their integrity and competence.

3. TOWNS categorically denies that there is any problem involving finances pertinent to the case, and would like to assure all our members and supporters that we will exercise due diligence and transparency in the management and disbursement of funds we have managed to raise in this and other fund-raising ventures.

                                                – From the members of TOWNS Foundation

Toxicologists say Nicole was intoxicated the night she was allegedly raped

A team of seven toxicologists who examined Nicole’s case concluded that her alcohol intake on the night she was allegedly raped was more than enough to impair her cognitive and physical faculties and thus render her incapable of sensing or fighting off danger.

The toxicologists calculated Nicole’s blood alcohol concentration (BAC) based on the alcoholic contents of the beverages she drank, factoring in her metabolism and the time of the intake. The table below shows Nicole’s estimated BAC levels from evening of Nov. 1, 2005 to dawn of Nov. 2, 2005.

Alcoholic drink

Estimated Time

Amount of alcohol ingested (mL)

Estimated BAC (mg/dL)

Vodka Sprite

8:30 pm (Nov 1)

48.0

128.0

B52

9:00 pm

10.0

142.2

B53

9:30 pm

10.0

 156.4

Singaporean sling

10:00 pm

43.2

259.1


Long Island Iced Tea

10:30 pm

19.06

297.4

Bullfrog

11:00 pm

60.0

444.9

 

11:30 pm

0

432.4

 

12:00 mn

0

419.9

 

12:30 am (Nov 2)

0

407.4

 

1:00

0

394.9

 

1:30

0

382.4

 

2:00

0

369.9

 

3:00

0

344.9

The team found out that Nicole’s BAC peaked between 11:00 p.m.of November 1 to 12:30 a.m. of November 2, around which time she was seen by Neptune Club security guard Gerald Muyot being taken out of the bar unconscious by accused Lance Cpl. Daniel Smith, and around which time the alleged rape occurred.

The toxicologists also found a positive correlation between her BAC levels and her behavioral manifestations as reported by witnesses.

Tomas Corpuz, another security guard at Neptune, had seen her walking “pasuray-suray” and “paikot-ikot” in the bar at 11:15 p.m. of November 1. After she was found at Alava Pier at 12:15 a.m. of November 2, Subic Bay Freeport bike patrolman Noel Paule reported seeing her crying and “parang lantang gulay.”

The testimonies of Corpuz and Paule on Nicole’s behavioral manifestations were consistent with the toxicologists’ calculations of her BAC. The table below shows the relationship between different BAC levels and their effect on the human body.

BAC (mg/dL)

Effect

20-30

Mood elevation, slight muscle relaxation

50-60

Relaxation and warmth. Increased reaction time. Decreased fine muscle coordination

80-90

Impaired balance, speech, vision, hearing, muscle coordination, euphoria

140-150

Gross impairment of physical and mental control

200-300

Severely intoxicated. Very little control of mind or body

400-500

Unconscious. Deep coma. Death from respiratory depression

Source: Alcohol: Pharmacology & Neurobiology. Vijay A. Ramchandani, PhD., Indiana University School of Medicine (with modifications), as lifted by the toxicologists

For more details, please read the official toxicology report here.

Nicole very determined to pursue her case

I am very much interested in pursuing my case. From the very beginning, my mind was set to pursue the case and not be influenced by other people by any means. My fight will be until the very end. I was never and will never be influenced by people surrounding me.

I called a press conference last Thursday. No one dictated me what to do. It was my own decision to let people know what I feel about the status of my case.

I have made the decision to ask for a change in the public prosecution team. I am extremely disappointed about the cross-examination of the accused Lance Corporal Daniel Smith. It was obvious that the state prosecutor did not prepare for it. Even the judge questioned the state prosecutor if he was doing a cross-examination. I begged the senior state prosecutor to allow my private prosecutor to have her cross-examine but she told us no.

Mula pa sa simula ay alam ko na ang kakulangan ng paghanda ng mga state prosecutors sa aking kaso. Naging mahinahon ako at ang aking pamilya dahil sa alam namin na nakatutok ang aming mga private prosecutors. (From the start, I was aware about the performance of the state prosecutors, but my family and I did not mind it because our private prosecutors were there). My private lawyers represent me and they deserve to be recognized as such. I am the victim here. I have the right to be represented. I cannot stand the fact that now they have excluded my private lawyers from the case.

Is the government really interested in getting justice for me? Or does it simply want to finish the case without caring for the result? If this is so, it simply means that it is not capable of protecting or defending its citizens like me.

When I engaged the services of Atty. Ursua, she told me that I have the option to settle, that it is my right. She asked me, what will you do if there is an offer of a settlement? 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. I know I will be bothered by my conscience someday if I did not fight and seek justice. I have come so far already, why will I think of a settlement?

Recently, my mother made public the advice of Senior State Prosecutor Emilie delos Santos to settle the case. I believe in my heart that my mother did not lie. Matagal niyang tinago sa akin ang bagay na ito dahil ayaw niyang madismaya ako at panghinaan ng loob.

DOJ Sec. Gonzales said that from the start he expressed his disbelief in my claim of rape. Mr. Secretary, I did not imagine the rape. Since your people are supposed to be prosecuting my rapists, you should never have said that. Hindi ako istupido na ilagay ang sarili ko sa ganitong paghihirap kung ito ay gawa-gawa ko lang. Coming out, testifying in court and recalling the rape were not easy for me.

I have come to realize that what I have done is right. 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. I will not let my family, friends and supporters down. They give me the strength and the courage to continue.

Ako at ang aking pamilya ay patuloy na nagtitiwala sa integridad at kakayahan ng aming mga private prosecutors. Nagpapasalamat kami sa kanilang tulong at dedikasyon sa kaso kahit pa man hindi namin sila nababayaran para sa kanilang serbisyo. Ang perang naiambag namin sa kaso ay napakaliit kumpara sa naging gastusin sa kaso. Kaya nagpapasalamat kami sa TOWNS (The Outstanding Women in the Nation’s Service) Foundation, sa Task Force Subic Rape at iba pang mga grupo na tumulong sa amin.

(My family and I trust in the integrity and capacity of our private prosecutors. They are dedicated even though they are doing it all for free, and we thank them for that. The money that my family has shelled out for the case has been too small compared to what was really needed, that is why we are also grateful to TOWNS [The Outstanding Women in the Nation’s Service] Foundation, the Task Force Subic Rape, and to the other groups for supporting us.)

(This statement was written by Nicole herself.)

Pahayag para sa mga Kababaihan, Kababayan at mga Mamamayan ng Daigdig

Sa aking mga kabaro, kababayan at sa lahat ng mamamayan ng daigdig.  

      Mahirap sa isang babae ang lumantad at sabihing siya ay nagahasa. Pero sa kabila ng mga panghuhusga ng ilan at pagkutya sa akin ay pinili ko po ang ituloy ang kasong ito.  

      Masakit isiping, nilapastangan ako ng mga sundalong Amerikano sa sariling kong bansa. Naisip ko noon, kahit pala sa sarili kong bansa ay di ako ligtas. Pinilit kong lampasan ang mga bangungot na ito upang mabawi ang aking dangal upang patunayan sa lahat na di ko ginusto ang pangyayaring ito. 

      Noong una, akala ko ay tutulungan ako ng ating gobyerno na bawiin di lamang ang aking dangal kundi ang dangal ng sambayanang Pilipino. Pero nagkamali ako. Imbis na ako ay tulungan, mas kumiling pa sila sa mga rapists. 

      Gumuho ang aking mga simpleng pangarap, pangarap na mabuhay ng tahimik at masaya. Gumuho ang aking pag-asang manalo at mabawi ang aking dangal dahil sa mga kaganapan sa loob ng court room. 

      Marami pang di magagandang bagay ang naranasan ko sa kasong ito. Alam ko di man sabihin ng aking pamilya ay ganon din sila.  

      Salamat sa mga taong umunawa, dumamay at tumulong sa akin at sa aking pamilya. 

      Ngayon, sa inyong lahat, kumakatok ako sa inyong mga puso. Wala na akong natitirang pag-asa, kundi ang tulong at suporta ninyong lahat. Tulungan nyo akong ibalik ang aking pagkatao. Hindi man ako manalo sa loob ng korte ay maitatak naman
sana sa ating lahat ang minsan, bumangon ako, lumaban di lamang para sa aking sarili kundi para sa lahat ng kababaihan sa daigdig lalo’t higit sa aking bayan.
 

      (Mula kay “Nicole”, Setyembre 15, 2006)

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