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The same judge who temporarily ordered convicted rapist Lance Cpl. Daniel Smith to a Manila jail will decide whether Smith can wait out his appeal in U.S. government custody.

A ruling on the custody dispute was expected Thursday in the Philippines from Judge Benjamin Pozon of the Makati City regional trial court, according to court official Jun Sunbilla.

Pozon on Monday convicted Smith, 21, an Okinawa-based Marine, of raping a Filipina on Nov. 1, 2005. The judge sentenced Smith to life in prison, which in the Philippines equals 40 years.

Why Pozon gave Philippine authorities custody of Smith at the close of Monday’s court hearing remains unclear. Smith’s attorneys immediately filed an objection to the custody transfer.

Jose Justiniano, Smith’s new lawyer, said the U.S. Embassy also sent a note to the Philippine Department of Foreign Affairs this week asking it to invoke a provision in the Visiting Forces Agreement that U.S. personnel shall remain in U.S. jurisdiction until all judicial proceedings, including appeals, are complete.

The Philippine departments of Foreign Affairs and Justice support this position, Justiniano said, adding that in a document filed with the Makati court, Justice’s chief prosecutor argued for adhering to the VFA.

Chief state prosecutor Jovencito R. Zuno “believes the appeal is still part of the judicial proceedings,” said Emilie Fe Delos Santos, the Justice Department lead criminal prosecutor in the rape case. “We have no objection to the motion” to return custody to the U.S. government, she said Wednesday.

But “Nicole,” the 23-year-old Filipina Smith was convicted of raping, has objected to Smith’s custody transfer request, Justiniano said. He said the judge will weigh the input from the U.S. and Philippine governments and the victim, then issue a ruling.

“It’s up to the judge,” he said.

Justiniano represented Lance Cpl. Keith Silkwood, one of three Okinawa-based Marines acquitted of conspiring to rape Nicole by egging Smith on. The lawyer said that Monday night, “when we were having a small celebration with my team, I got a call from a Marine captain at the U.S. Embassy asking if I would be willing to represent Smith. I accepted.”

Benjamin Formoso and Ricardo Diaz previously represented Smith. Formoso said Wednesday he had yet to receive a notification withdrawing his services but it was his understanding that Smith had a new attorney. Justiniano said Smith told him he was switching camps because “your record indicated you have won” three times. Justiniano also represented two other Marines initially charged in the Subic Bay rape. Their cases were dismissed.

Justiniano said that as of Wednesday afternoon, Smith still was at the Makati jail. “Initially, when I visited him on the early morning of Dec. 5, he looked confused,” the lawyer said. “Last night he appeared to be better.”

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Jennifer reports on the U.S. military from Kaiserslautern, Germany, where she writes about the Air Force, Army and DODEA schools. She’s had previous assignments for Stars and Stripes in Japan, reporting from Yokota and Misawa air bases. Before Stripes, she worked for daily newspapers in Wyoming and Colorado. She’s a graduate of the College of William and Mary in Virginia.

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