US witnesses give statements

Pemberton, witnesses may not appear for probe  

MANILA, Philippines - American witnesses in the killing of a transgender Filipino need not appear for the preliminary investigation tomorrow after submitting their sworn statements to the Olongapo City prosecutor’s office, the US government said.

Depending on the advice of his lawyer, US Marine Private First Class Joseph Scott Pemberton, who is accused of killing 26-year-old Jeffrey “Jennifer” Laude, may also skip the probe for now.

In a statement posted on its website yesterday, the US embassy said prosecutors met with four witnesses last week and took their sworn statements in accordance with Philippine law.

The embassy said this satisfied the requirements of the city prosecutor and the “make available” language of the US-Philippine Visiting Forces Agreement (VFA).

“The witnesses will not appear, as they have already met their current legal obligations. In accordance with the VFA, the witnesses will be made available for the trial,” the embassy said, without stating if the witnesses were US Marines.

The Department of Foreign Affairs (DFA) earlier said the subpoenas for Pemberton and four other US Marines sought as witnesses in the case were delivered to the US embassy on Friday.

A witness named “Barbie” reportedly saw Pemberton with Laude before the victim was found dead. Barbie is now under the government’s witness protection program.

Pemberton is likely to skip the preliminary investigation at the city prosecutor’s office tomorrow. The US embassy said yesterday that they will leave the decision to Pemberton on whether to appear or not before the prosecutor’s office.

An embassy official earlier said that the US would comply with a Philippine prosecutor’s order to produce Pemberton and four other Marines in the investigation of the case.

US embassy assistant information officer Anna Richey had said in an email to The STAR on Saturday that the US will continue to assist in the investigation to help ensure that justice is served.

“This will include making the suspect, witnesses and any evidence gathered available to the Philippine authorities.

“Whether the suspect will appear on Tuesday is a decision that the suspect will make in consultation with Philippine legal counsel, in accordance with Philippine law,” the US embassy said.

The statement was issued amid mounting calls for the Philippine and US governments to ensure the physical turnover of Pemberton to local authorities for detention in Olongapo City.

Pemberton is being held on board the USS Peleliu, now docked at Subic Bay, pending an investigation into Laude’s death.

Police said they found Laude half-naked on the bathroom floor of a room at Celzone Lodge in Olongapo last Oct. 11 with bruises, cuts and bite marks on his body.

They said the victim, who had checked in with the suspect just over an hour earlier, had died from “asphyxia by drowning.”

Elias Galamos, cashier of the hotel, told police investigators that at about 10:55 p.m. Laude and an unidentified white man checked in at the motel. However, after more than 30 minutes, the white man left.

When a hotel boy opened the room, he discovered Laude’s body.

Lawyer Harry Roque, who represents Laude’s family, insisted on the immediate transfer of Pemberton to the custody of Philippine authorities, like what happened during the 2005 Subic rape case where the US government immediately surrendered suspect Lance Corporal Daniel Smith.

Roque lamented the statement of the US embassy on Sunday that the appearance of Pemberton would depend on his decision upon advice from his Philippine lawyer.

“This is why we should junk VFA. US servicemen, even if they commit non-service related offenses, are not under jurisdiction of the Philippines. We still owe it to them if they choose to participate in local proceedings,” he pointed out.

Under Philippine rules of court, however, respondents in criminal cases undergoing preliminary investigation are not yet detained until the investigating prosecutors find probable cause and file the case in court.

Only when a trial court issues an arrest warrant can they be arrested and jailed pending trial.

However, when respondents are arrested upon committing a crime, they undergo inquest proceedings and remain in detention until the prosecutors resolve the charges against them.

The US government maintained it continues to fully cooperate and collaborate with Philippine authorities in all aspects of the case concerning the death of Laude.

Police and the prosecutor named Pemberton as the primary suspect in the killing. He was attached to a North Carolina-based unit that had just taken part in joint military exercises in the Philippines.

All US warships except for Peleliu have left Subic Bay after being cleared. The ships took part in the just-concluded joint naval and maritime exercises in Palawan and Zambales.

Roque had earlier filed murder charges against Pemberton before the Olongapo prosecutor’s office.

City prosecutor Emille Fe delos Santos will determine, based on the complaint and Pemberton’s response, if there is probable cause to charge the US soldier in court.

Delos Santos has created a panel of prosecutors to conduct the investigation.

Strong evidence

Laude family’s lawyer Roque said the evidence against Pemberton is strong.

Roque reiterated yesterday their call for the transfer of Pemberton to the custody of Philippine authorities during the preliminary investigation on the criminal complaint before the Olonpago Prosecutor’s Office.

“We have very strong evidence. The statement of Barbie is the most important for us,” Roque said.

The lawyer was referring to the other transgender woman who accompanied Laude and Pemberton going to Celzone Lodge after they met at the nearby Ambyanz Disco bar.

Barbie’s real identity was withheld for security purposes by the Department of Justice (DOJ).

Apart from Barbie, Roque said they would also present two other witnesses including the room boy in who discovered the body of Laude - in the preliminary investigation hearings that will start at around 2 p.m. on tomorrow.

He said other pieces of evidence like the closed-circuit television (CCTV) camera footage from the club and the motel would also be used to establish probable cause against Pemberton.

During the police probe, Pemberton was identified by witnesses through a photo lineup provided by the US Naval Criminal Investigative Service (NCIS).

Police allege that the suspect used force and intended to kill Laude when he pushed the victim’s face into the toilet bowl.

Roque cited one qualifying circumstance under the law that could establish the crime — treachery by taking advantage of superior strength.

“We’re talking about a US Marine and a transgender woman, so definitely there was use of superior strength,” he explained.

Other qualifying circumstances of murder include evident premeditation and cruelty by deliberately and inhumanely augmenting the suffering of the victim. – With Edu Punay, Ric Sapnu