Probe sought into recanted testimony
Stars and Stripes March 27, 2009
CHATAN, Okinawa — Women’s rights groups in the Philippines are demanding an investigation into a rape victim’s recantation of testimony that sentenced a Marine to 40 years in prison two years ago.
A petition was filed Monday before the Philippines Supreme Court by the Gabriela Women’s Party, several other women’s organizations and former lawyers of the rape victim, known publicly as "Nicole." They are asking for the court to look into the circumstances surrounding an affidavit the woman signed March 12, just before Nicole left for the U.S. to live with her American boyfriend.
The affidavit says Nicole now "doubts" the accuracy of her testimony during the rape trial of Marine Lance Cpl. Daniel Smith in December 2006. At that time, she claimed she was raped by Smith in a van after a night of heavy drinking in the Subic Bay Freeport.
The affidavit was notarized by a lawyer for Smith, who said the notarization was a "matter of convenience" done at the same time Nicole accepted 100,000 pesos (about $2,000) in compensatory damages the court ordered when Smith was convicted.
Smith is being held on the grounds of the U.S. Embassy in Manila while an appeal of his conviction is pending. Gabriela and the other petitioners claim the "Smith camp" coerced Nicole into recanting her story.
The petitioners claim the people of the Philippines no longer have proper representation in the appeals case "because after the so-called recantation of Nicole, the Office of the Solicitor General has not taken any step to ensure that the interests of the People are protected," the petition, obtained by Stars and Stripes on Wednesday, said.
"It is most suspicious that the defense version of events and the questions the defense lawyers raised during the trial and in their memoranda have found their way into a sworn statement supposedly executed by Nicole," the petition said.
Attorney Jose Justiniano, who represents Smith, said he was surprised when Nicole and family members asked him to notarize the affidavit written by the 25-year-old woman.
"I had no idea this would happen," he told Stars and Stripes. "We had nothing to do with this."
Smith’s lawyers did, however, file the affidavit to the appeals court.
Meanwhile, in an article published Tuesday, the Manila Times reported that an appeals court judge drafted a ruling last year reversing Smith’s conviction just before the judge retired in June.
In the 55-page document, Justice Augustin Dizon wrote that Smith was innocent because all "reasonable doubt" had not been proven. However, several different justices were assigned to the case after Dizon retired, and none of them acted on it.
The appeal has been stalled because several justices took themselves off the case because they were friends of lawyers from the law firm representing Smith. The document has been attached to the records of the case now being considered by new justices.
According to the Manila Times’ article, Dizon wrote that reasonable doubt had not been proved in the Smith case because "force and intimidation," required by Philippines law in rape cases, was "questionable."
In their petition, the women’s groups also asked the Supreme Court to "investigate the improper disclosure and release of the alleged Court of Appeals draft ruling acquitting Smith."
"The investigation should determine who was responsible for the release of the document and the motives behind its release," the petition said, citing the newspaper’s contention that several appeals court judges speaking anonymously said they supported an acquittal.
"From the sequence and timing of events, it is not difficult to conclude that everything has been orchestrated so that in the end Smith will get acquitted and the public will accept the acquittal," the petition said.