Not lookin’ good ?

The prosecution of four United States Marines in the Subic rape case is fairly going down the toilet. While it would be inappropriate to speculate on the guilt or innocence of the accused, what we can say from an outsider’s point of view is that the disarray on the prosecution side is both extraordinary and disturbing.

What else can one say about a high-profile criminal case, the first under a closely scrutinized Visiting Forces Agreement with the United States, where the complainant and her private attorneys have been boycotting the proceedings for about a week now, at a time when the accused themselves are testifying?

How poisoned has the atmosphere become when said complainant publicly expresses her loss of "trust" in the government prosecutors whom she accuses not only of indifference, but a total lack of commitment to procuring the conviction of the accused? A demand that the whole team of government prosecutors be replaced remains pending with an openly (and puzzlingly) antagonistic Secretary of Justice.

How often does one see government and private prosecutors squabbling noisily in media? Instead of a common front against formidable opponents with well-thought out defenses, the government seems to have fielded a prosecution team which has obviously lost the confidence of the very people whose interests it is supposed to protect, even fight tooth and nail for.

At this point, it matters little who’s lying and who’s telling the truth. What’s clear is that unless this erstwhile "team" regroups, and distinguishes what’s really important from the essentially tangential, the prosecution side can forget it. This case will be lost. It’s not merely a matter of courtroom strategy, it’s a question of whether we are really getting at the truth, the whole truth and nothing but.

In the high-decibel skirmishing that has polluted the proceeding, it is the truth that seems to be getting sacrificed – that, as well as hard-earned professional and personal reputations. Let me explain:

It appears the brouhaha started when government prosecutors were accused of gross incompetence in the cross-examination of accused Lance Corporal Daniel Smith. According to private prosecutor Evelyn Ursua, Prosecutor Nolibien Quiambao, who was allegedly absent from the trial most of the time but was inexplicably assigned to conduct the cross-exam, was "clueless" about the proceeding.

Quiambao supposedly didn’t take notes of the direct testimony of the witness, and wound up just asking the witness to repeat, even "clarify," what he had already said. The prosecutor allegedly failed to challenge the witness on material points. When Atty. Ursua asked for an opportunity to conduct further cross-examination, she was told to go fly a kite. In other words, she was refused the chance to get her points across.

Clearly, it is the right and responsibility of government prosecutors to control the process and allow, or not allow, private prosecutors to have their turn at bat. Most prosecutors are only too happy to have private counsel on board, but one never knows.

The more important issue is whether Quiambao’s performance, and the refusal to allow Ursua or other private prosecutors to participate, contributed to the pursuit of the truth, or not. In the final analysis, we won’t know until the Judge renders his verdict. By then, however, it may be too late for the complainant if the accused walks free.

The line of defense of the accused is no mystery. They are arguing "consensual" sex, which means the fact of sexual contact between the complainant and Lance Corporal Daniel Smith is admitted. However, they deny that any "force, threat or intimidation" was used on her. They also claim, contrary to the complainant’s own charge, that she was not "deprived of reason or otherwise unconscious" by virtue of being dead drunk.

In essence, the accused are claiming that the complainant "Nicole" wasn’t only not forced into sex by LC Smith, she invited it and even initiated it. This is why Staff Sergeant Chad Carpentier ventured the opinion that she was a "professional." He didn’t specify what kind of professional. Nobody asked him, on direct or cross-exam, to clarify if he was saying she was a hooker or a prostitute. Perhaps, no clarification was needed.

Both Carpientier and Lance Corporal Keith Silkwood recounted on the witness stand that Nicole was on Smith’s lap while at the Neptune bar, acting flirtatiously. Carpentier even characterized her as having been "aggressively flirtatious" with Smith. LC Dominic Duplantis can be expected to say the same thing when he testifies (He is scheduled to be on deck, as we write this). The accused are also saying they heard no complaints, certainly witnessed no resistance from the complainant.

Where is all this going? Well, it is of course totally understandable that the complainant laments the assault on her personal character. She’s already had to testify on the details of the rape. Now, she says, she has to endure being called a tramp, and worse!

But, actually, I don’t think the defense is being necessarily vicious, or gender insensitive. The defense lawyers, I’m sure, are aware that in rape cases, the character of the complainant is not really the critical issue. Jurisprudence is replete with rulings that neither virginity nor moral character nor a spotless reputation is an element of the crime. Even prostitutes, it has been held, can be victims of rape.

What’s critical is the force or intimidation applied or, as in this case, the deprivation of reason or the capability to give consent. If the complainant was virtually unconscious because it turns out she was really drunk, whoever caused her to get that drunk, then she obviously was in no position to consent to anything, much less sex at the back of a van. The defense of "consensual sex" may, thus, not fly.

Still, whatever the truth about what really happened, it seems clear this is not an open and shut case. The prosecution will have to be on the ball, just as the defense team seems to be on the ball. But with open antagonism between the Secretary of Justice and government prosecutors, on the one hand, and the complainant and the private prosecutors, on the other, one wonders whether justice, in the end, will be served.

I guess my advice to the prosecution team has to be: Focus. Verily, focus on the task at hand and eschew these pointless distractions! Or thy names shall be mud...verily!