PENDING MOTIONS IN LANCE CORPORAL SMITH'S APPEAL

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