Oct 032014
 

http://wikileaks.org/cable/2007/04/07MANILA1098.html#

Reference ID Created Released Classification Origin
07MANILA1098 2007-04-04 08:41 2011-08-30 01:44 CONFIDENTIAL Embassy Manila
VZCZCXRO3964
OO RUEHCHI RUEHDT RUEHHM
DE RUEHML #1098/01 0940841
ZNY CCCCC ZZH
O 040841Z APR 07
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 5979
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS IMMEDIATE
RUEHNH/AMCONSUL NAHA IMMEDIATE 0089
RHHMUNA/CDRUSPACOM HONOLULU HI IMMEDIATE
RUEKJCS/SECDEF WASHDC IMMEDIATE
C O N F I D E N T I A L SECTION 01 OF 02 MANILA 001098

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/04/2012
TAGS: PREL MARR KCRM CASC RP
SUBJECT: PENDING MOTIONS IN LANCE CORPORAL SMITH’S APPEAL

REF: A. 06 MANILA 4880
¶B. 06 MANILA 5109

MANILA 00001098 001.2 OF 002

Classified By: Ambassador Kristie A. Kenney, reasons 1.4 (b) and (d)

¶1. (C) At the request of the Department of Foreign Affairs,
new Solicitor General Agnes Devanadera and Assistant
Solicitor General Amy Lazro-Javier on April 3 briefed Pol/C
on the status of the legal case of Lance Corporal Daniel
Smith, whom the Makati City Regional Trial Court convicted in
December 2006 on the charge of rape (ref a). The Regional
Trial Court had on January 2 submitted to the Court of
Appeals its certified complete record of trial. The Court is
reviewing these voluminous documents (over 10,000 pages);
once it finishes this review, it will notify the defense
attorneys that they have forty-five days to submit their
brief on behalf of their client. Thereafter, the Solicitor
General, on behalf of the Government of the Republic of the
Philippines, will have an additional forty-five days to
submit its brief to the Court. The Solicitor General and,
separately, the main defense attorney assured Pol/C that it
usually took severalQonths for the Court to complete such
reviews of documents from lower courts, and the length of
review in this case so far was not at all unusual. The
defense attorney commented further that the longer the case
remained out of the public eye, the better it would be for
his client.

¶2. (C) Some pending motions may bring the case at least
briefly back into view in the near future. The victim in the
criminal case had filed with the Court of Appeals an “Omnibus
Motion for the Dismissal of Appeal and Issuance of Warrant of
Arrest,” alleging that LCpl. Smith was now a “fugitive,”
having fled to “foreign territory” with the transfer of
custody back to the U.S. Embassy on December 29 (ref b). The
Solicitor General predicted that the Court would rule on this
motion “imminently” and expressed high confidence that the
Court would deny the motion entirely. She opined that the
Court likely wanted to rule on this motion before proceeding
with the actual appeal of the criminal case.

¶3. (C) There are also four related motions pending Supreme
Court decision, one filed by the victim (“Suzette Nicolas v.
Alberto Romulo, Raul Gonzales, Eduardo Ermita, Ronaldo Puno,
Sergio Apostol and Daniel Smith”) and three others by
“interested parties” (“Bayan, Bayan Muna, Gabriela, KMP, KMU,
League of Filipino Students, Public Interest Law Center v.
President Gloria Macapagal Arroyo et al,” “Jovito Salonga,
Wigberto Tanada, Harry Roque, Jose dela Rama, Emilio
Capulong, Benjamin Pozon v. Smith et al,” and “Antero Pobre
v. Smith et al”), focused either on the custody issue or the
validity of the Visiting Forces Agreement, or both. The
Solicitor General has already filed a comment opposing the
motion of the victim and has prepared a consolidated comment
opposing the other three motions, which she expects to file
no later than April 16. She said that she does not expect
the Supreme Court to rule on any or all of these motions
before June, but predicted the Supreme Court would eventually
dismiss them all. Both the Solicitor General and the
Presidential Chief Legal Counsel are prepared to make oral
arguments if Supreme Court so requests; a defense attorney
would also have the right to speak. She emphasized that the
Solicitor General’s office was on the same side as the
defense attorneys on these motions related to custody and the
VFA, but would of course be on opposite side for the actual
appeal of the criminal case.

¶4. (C) Separately, there is yet another motion filed by the
victim (“Suzette Nicolas et al, Zenaida Quezon Avancena et al
v. Smith et al”) pending in the Court of Appeals, citing the
government for “contempt” related to its “bad faith” in
transferring LCpl. Smith back to U.S. custody. The Solicitor
General has already filed its comment opposing this motion
with the Court. She opined that the Court was likely waiting
for the Supreme Court to rule on the other motions; dismissal
by the Supreme Court would effectively render this motion
moot, she noted.

¶5. (C) Comment: Foreign Secretary Romulo separately
indicated to Ambassador on April 4 that the Solicitor General
privately believes that the government’s case is weak, and
has predicted the overturning of the guilty verdict by theQourt of Appeals or Supreme Court. For now, the case
continues to proceed in compliance with Philippine law and
the Visiting Forces Agreement, and the government continues
actively to assert the U.S. right to custody during the
appeals process as well as to insist on the validity of the
VFA (on which the Supreme Court has already ruled in an
earlier case). LCpl. Smith remains in good health and
spirits in his detention quarters on the grounds of the

MANILA 00001098 002.2 OF 002

Embassy, buoyed by a recent visit by his parents.

Visit Embassy Manila’s Classified website:
http://www.state.sgov.gov/p/eap/manila/index. cfm
KENNEY

   

 

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