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A Philippine judge on Thursday had yet to render a decision on the custody of Lance Cpl. Daniel Smith, a U.S. Marine convicted Monday of rape in the Philippines.

Rather than issuing a ruling, Judge Benjamin Pozon of the Makati City regional trial court may set a court hearing to consider the custody matter, court officer Jun Sumbilla said Thursday afternoon.

A hearing would enable the parties involved to present their arguments, he said.

“The judge is not in court today,” Sumbilla said. “He is considering setting a motion for a reconsideration (hearing) but there is no definitive order yet.”

Smith’s attorney, Jose Justiniano, said from Manila on Thursday afternoon that there were no new developments in the case.

He expressed frustration that a decision was taking this long while Smith remained in the Makati City jail in suburban Manila. Justiniano said he sees no need for a custody hearing because the Philippine Department of Justice already has agreed that the U.S. government should retain custody of Smith until all judicial proceedings, including appeals, are complete.

In remarks to the Philippine Department of Foreign Affairs this week, U.S. Ambassador Kristie A. Kenny was quoted as saying, “We are working together to fix a problem concerning the seizure of Lance Cpl. Smith and the Visiting Forces Agreement.”

Smith “is not a private citizen — he is a member of the U.S. military,” Kenny was quoted in an embassy news release as saying. “He was here on a military mission, so he is governed by the Visiting Forces Agreement.”

Smith faces 40 years in prison for raping a 23-year-old Filipina on Nov. 1, 2005. He has appealed the conviction.

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