Murder raps vs Pemberton

OLONGAPO CITY, Philippines – Treachery, abuse of superior strength and cruelty made it a case of murder instead of mere homicide.

US Marine Private First Class Joseph Scott Pemberton was charged with murder yesterday for the death in October of Filipino transgender Jeffrey “Jennifer” Laude.

No bail was recommended for Pemberton, who has been detained in a facility used by the Philippines-US Mutual Defense Board at Camp Aguinaldo in what has been described as a novel joint custody by both governments.

In a raffle, the case was assigned to Branch 74 of the Olongapo City Regional Trial Court under Judge Roline Ginez-Jabalde.

Malacañang lauded the decision to file the murder case in court.

“The prosecutor’s investigation proceeded with all deliberate speed. We now await the decision of the court on the issue of probable cause and for the next steps to proceed,” presidential spokesman Edwin Lacierda said.

He said that in accordance with the Visiting Forces Agreement (VFA), the government looks forward to the full cooperation of the US government.

A resolution signed by Olongapo City Prosecutor Emelie Fe delos Santos and five other prosecutors explained, “We appreciated treachery, abuse of superior strength and cruelty in qualifying the killing to murder.”

The resolution stated: “Pemberton choked Jennifer from behind. Obviously, in that position, Jennifer was deprived of the opportunity to defend herself. What is decisive is that the execution of the attack, without the slightest provocation from a victim such as Jennifer who is unarmed, made it impossible for her to defend herself or to retaliate.”

“A sudden attack against an unarmed victim constitutes treachery,” the prosecutors further explained, also citing the deliberate means employed by the respondent “to discount any possibility of retaliation or escape.”

The prosecutors also considered the autopsy report, which showed abrasions, bruises and contusions on Laude’s body, in establishing abuse of superior strength.

They said the element of cruelty was undeniable.

Pemberton, they stated, might have been angered upon discovering that he had been fooled into believing Laude was a real woman. But the prosecutors asked if killing the transgender was necessary.

Lawyers of Pemberton led by Rowena Garcia-Flores of the Angara, Abello, Concepcion, Regala and Cruz Law Offices (ACCRA Law) opted not to answer the murder charge during the preliminary investigation proceedings.

In the absence of an answer from Pemberton’s camp, the allegations in the complaint were not refuted and thus upheld by the prosecutors.

Strong case

“As a prosecutor, going through the evidence, we believe we have a strong case,” De los Santos said in a press conference where she announced their findings.

De los Santos, who also handled the 2005 rape case against US Marine Lance Cpl. Daniel Smith, will lead the team that will handle the prosecution of the murder case against Pemberton.

The Laude family welcomed the findings of the prosecutors and took the opportunity to again call for the transfer of Pemberton to the custody of Philippine authorities.

Their lawyer Harry Roque Jr. urged the Armed Forces of the Philippines to immediately transfer the American serviceman upon receipt of an arrest warrant from the court.

“There is already a criminal case filed. The accused should be submitted to the custody of the court. They cannot invoke the VFA anymore since it clearly states that a murder case is an extraordinary circumstance that should cause the transfer of custody to Philippine authorities,” Roque explained.

Full cooperation expected

The Philippines looks forward to the full cooperation of the US government in ensuring that justice is served in Laude’s death, the Department of Foreign Affairs (DFA) said yesterday.

The DFA said the prosecutor’s investigation proceeded with deliberate speed.

The Philippines conveyed to the United States in October that failure to cooperate could have repercussions on the Enhanced Defense Cooperation Agreement (EDCA), whose constitutionality has been challenged before the Supreme Court.

Witnesses pointed to Pemberton

The resolution of the prosecutors presented circumstances and testimonies from witnesses all pointing to Pemberton committing the crime of murder.

Separate but parallel probes were conducted by the Philippine National Police and the US Naval Command Investigative Service (NCIS) on the killing of Laude in a room at the Celzone Lodge along Magsaysay Avenue in Olongapo last Oct. 11.

Laude and Pemberton met that night at the Ambyanz Nightlife Bar also along Magsaysay Avenue. They checked into the hotel where employees later found the lifeless Laude inside the bathroom.

Another transgender identified only as Barbie said he accompanied Laude and Pemberton inside the hotel.

Barbie is now under the Witness Protection Program of the Department of Justice.

Pemberton had skipped both preliminary hearings, which his lawyer and a representative from the US embassy attended.

Roque said that murder is the only acceptable case for the victim’s relatives and the possibility of downgrading it to homicide is not acceptable.

No copy of NCIS probe

He complained that they were not given a copy of the report of the NCIS on its investigation.

Delos Santos, however, explained that the prosecution panel got hold of a copy of the report only as a gesture of cooperation from the NCIS. In the case of Smith, prosecutors had to go to court to ask for a copy of the NCIS report.

She added that lawyers of the Laude family are free to look at the NCIS report given to prosecutors.

Roque said the motion to recuse filed against the Olongapo city prosecutor will still have to be resolved despite the filing of murder charges against Pemberton.

Roque told The STAR that they would still pursue their petition for Delos Santos to recuse from the proceedings.

“There will be problems if there is a rift between the public and private prosecutors,” Roque said.

Upon filing of the case in a regional trial court, the public prosecutors will take charge in the prosecution of the suspect. The private lawyers, meanwhile, will be under direct supervision of the prosecutor.

Business still slow

Meanwhile, residents and businesses in Olongapo City continue to lament the cancellation of port visits by US Navy ships because of the Laude case.

Nine ships were supposed to make port calls at Subic in November and December this year.

According to a report from Global Terminals Development Inc. a private company operating the port in Subic Bay Freeport, four US Navy ships were scheduled to visit last month and five more were due to arrive this month.

The Navy Times, quoting a spokesperson of the US Navy, reported that the port visits were not canceled but merely “put on hold.”

A statement from the Subic Bay Freeport Chamber of Commerce said the cancellation of the port visits had caused much disappointment among local businessmen.

Ruben de Guzman, president of Metro Olongapo Chamber of Commerce Inc., said his group is helping promote the city as a nice and safe place for visitors.  – With Edu Punay, Delon Porcalla, Janvic Mateo, Ric Sapnu