Letter to the Editor — Balance the views of the defense against that of the prosecution

Your issue August 9, 2006 carried the interview of the prosecutor in the case of SPO1 Marcial Ocampo, who has been accused of shooting to death Elpedio "Jojo" dela Victoria, citing "discrepancies in the testimonies of the policeman and other defense witnesses".

Though the local media never came out with a report favorable to said policeman, we are constrained to write in the hope that good conscience, which inheres in every man might somehow influence the publication hereof to balance the views of the defense against that of the prosecution.

As a rule, we do not submit ourselves to media interviews in order to avoid interference with the functions of the trial Courts. This is just a shining exception to that rule because of media activities of the private prosecutor.

Please take note that the time differences among witnesses refer to extremely minor matters, especially in estimate of time and one-word answers of a witness to leading questions. Our Supreme Court has already rule that approximations of time is inaccurate (People vs. Meredo, L-34127, January 10, 1984) and one-word answer to a leading question cannot be given weight (People vs. Clores (En Banc), L-38398, September 30, 1980 and People vs. Caparas, L-47411, January 18, 1982). On the other hand, "meticulous accuracy can only mean fabrication" (People vs. Garica, En Banc, L-30449, October 31, 1979).

When SPO1 Ocampo arrived at his rented room until he took a haircut between 3:00 o'clock to 3:45 in the afternoon of April 12, 2006 is not the core of the defense of alibi. Microscopic examinations of the time and armchair evaluation time when the haircut was done on said police officer is completely inconsequential because we can even lose our hat in the hot track. The most important thing is where was said policeman at 3:00 o'clock in the afternoon.

Five policemen, whose affidavits where taken at the instance of their superior when media reported that SPO1 Marcial Ocampo was the suspect in the assassination of Jojo dela Victoria, which they all confirmed before the trial court, that said policeman was seen at 3:00 o'clock in the afternoon at the Cebu Provincial Police Office (CPPO), Lahug, Cebu City, should be the serious cause for worry of the prosecution. The CIDG, which is the lead agency in the investigation of said case, suppressed said affidavits, which were only brought to the fore when the same were subpoenaed by the Court and made part of the records of the case.

The prosecutor should have explained why prosecution witness Joselito Gerali testified first that he heard successive gunshots while inside his store and when confronted that he could not see who fired the shots from inside his store, he changed his testimony and testified that he was already at the gate near his store when the shots were fired. This is an essential detail of a narration of facts, which cannot just be changed nonchalantly. The same witness further testified that the fatal shots were fired at close range. This is contrary to the physical finding of another prosecution witness, the attending physician who conducted the autopsy on the body of said deceased, that the shots were fired at a far distance because of the absence of powder burns. Incidentally and very unfortunately, Joselito Gerali was the only witness who testified to the actual shooting.

It need not be further stressed that physical evidence, like the autopsy report " is of the highest order and speaks more eloquently than all witnesses put together" (People vs. Bordaje, L-29271, August 29, 1980).

Another important fact showing that the prosecution were trying to change basic fact that the shooting took place at 3:00 o'clock in the afternoon, as reflected in the Police Blotter of Talisay City, are the testimonies of prosecution witnesses that the shooting took place at 3:25 o'clock in the same afternoon. This is purposely adjusted to negative the testimonies of the five policemen that they saw SPO1 Marcial Ocampo at 3:00 o'clock in that same afternoon. Otherwise stated, the prosecution was lying through its teeth.

There are so many other material inconsistencies that would take too long to enumerate and better argued before the Court.



(Sgd.) Vicente E. Fernandez II
Fernandez Fernandez Law Offices
351-A V. Rama Ave.
Cebu City