DOJ affirms murder indictment of Pemberton

MANILA, Philippines - The Department of Justice (DOJ) has affirmed with finality the murder indictment of US Marine Lance Cpl. Joseph Scott Pemberton over the killing of transgender Jeffrey “Jennifer” Laude in Olongapo City in October last year.

In a nine-page resolution issued yesterday, the DOJ denied Pemberton’s motion for reconsideration seeking reversal of the  review resolution upholding the finding of probable cause by the Olongapo City Prosecutor’s Office on the murder charge against the detained American serviceman.

“We reviewed the facts and the procedural backdrop of this case vis-à-vis the arguments in the motion for reconsideration and found no sufficient justification to reverse, alter or modify the resolution dated Jan. 27, 2015,” read the ruling signed by Justice Secretary Leila de Lima.

Pemberton had appealed the resolution of the DOJ last month affirming his indictment.

In a 24-page motion for reconsideration, the detained American serviceman insisted the DOJ should have dismissed the charge that does not satisfy all necessary elements of a murder case.

Pemberton instead asked the case be downgraded to homicide.

Pemberton specifically asked the DOJ to reconsider its review resolution last Jan. 27 and dismiss the murder charge “absence of any qualifying circumstance for murder (in which case the charge should be homicide).”

His lawyers led by Rowena Garcia-Flores questioned why the prosecutor accepted additional evidence after Pemberton’s waiver – including the Naval Criminal Investigation Service (NCIS) report – allegedly in violation of the Section 3, Rule 112 of the Rules of Court.

They said Pemberton’s right to due process was violated during the preliminary investigation conducted by the Olongapo City prosecutor’s office.

De Lima rejected the argument, saying there was even no need for the supposed additional evidence allowed by the investigating prosecutors to establish probable cause.

She said pieces of circumstantial evidence – particularly the statement of witnesses Mark Clarence Gelviro alias “Barbie” and Ellias Gallamos and the CCTV footage from the club where Pemberton and Laude went – would suffice to file the case in court.

“The circumstance that respondent (Pemberton) was the person last seen with Laude before and right after the commission of the crime falls within the second type of positive identification and points to respondent as perpetrator of the crime. To us, this is sufficient to establish probable cause against respondent,” De Lima explained.

Pemberton reiterated that treachery does not exist in the case, as there was “no direct evidence of the means and methods employed in the execution of the alleged crime and of the purported killer’s deliberate intent in employing this manner of execution.”

His lawyers also stressed there was no abuse of superior strength, citing the supposed lack of evidence showing there was notorious inequality in the relative strength of the parties.

“There is also nothing to prove that there was a premeditated plan to take advantage of superior strength in the alleged commission of the crime,” they argued.

As to the element of cruelty, they claimed there was no concrete proof to establish that the purported killer intended to augment the suffering of the victim for his own pleasure.

Contrary to the finding of the DOJ that the mere presence of wounds in the body of Laude would suffice, the lawyers argued that the perpetrator’s intent should be essential.

Pemberton’s camp also insisted there was no direct evidence linking him to the killing, contesting the DOJ finding that prosecution may be based on circumstantial evidence gathered by investigators – including the CCTV footage and statement of witness “Barbie.”

Lastly, the lawyers said their client was not given ample opportunity to answer the charges during the preliminary investigation.

They pointed out Pemberton failed to submit his counter-affidavit, not that he intended not to answer the charges but because he was deemed to have waived his right to reply upon decision of the prosecutor.

The Olongapo City Regional Trial Court Branch 74 has set the arraignment of Pemberton on Monday, Feb. 23, following the DOJ’s dismissal of his petition for review seeking reversal of findings of the Olongapo City prosecutor’s office last December that led to the filing of the murder case against him in court.

Justice Secretary Leila de Lima said her office would try to resolve the MR before Monday so as not to further delay the arraignment proceedings.

“But procedurally, even when there’s no resolution yet on the MR, nothing can prevent the judge from proceeding with the arraignment because the petition for review was already resolved and the 60-day suspension has already lapsed,” De Lima said.

Flores agreed to this opinion, saying their MR would not delay the arraignment.

But asked if Pemberton would appear before the court, the lawyer replied: “No comment on whether he will appear.”

The Olongapo city prosecutor’s office filed the murder case against Pemberton last month with the Olongapo City regional trial court Branch 74, which later on issued an arrest warrant against the US serviceman, who remains under US custody at a joint facility in Camp Aguinaldo in Quezon City.