MARINE CASE UPDATE: APPEALS COURT DECISION NO

UNCLAS MANILA 004015

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PREL MARR KCRM CASC RP
SUBJECT: MARINE CASE UPDATE: APPEALS COURT DECISION NO
LATER THAN OCTOBER 2008

REF: MANILA 3166 AND PREVIOUS


1. (U) Lance Corporal Daniel J. Smith remains in U.S.
custody on the Chancery grounds and continues to receive
regular visits from his Philippine pastors and lawyers. He
is in good physical condition and follows a daily exercise
routine.


2. (SBU) Commander Gary Hoyt, a psychiatrist, and Chaplain
Tom Devane, both from III Marine Expeditionary Force, visited
Smith on December 9. They noted Smith's good morale and
reported no problems.


3. (SBU) Philippine Department of Interior and Local
Government Undersecretary Corpus visited Smith December 17.
The visit -- the first since September -- lasted less than 15
minutes and was without incident. U/S Corpus told polcouns
that such visits are essential to reassure the Philippine
press that Smith remains in custody.


4. (U) There were no Marine-case related demonstrations in
September, October, and November. However, approximately 30
anti-VFA protesters calling themselves the "League of
Filipino Students" demonstrated in front of the U.S. Embassy
on December 2. Another demonstration by approximately 100
protesters from left-leaning groups, including the League of
Filipino Students, and Gabriela, a women's rights
organization, also took place in front of the U.S. Embassy
December 4, the anniversary of the trial court's verdict.
The Philippine National Police assisted U.S. Embassy security
in managing the demonstrations and there were no incidents.


5. (U) Media coverage of the case has decreased
substantially over the last few months but some national TV
and press stories or commentary appear around significant
dates associated with the case. The Public Affairs Section
continues to receive inquiries from local media about the
status of the case, and requests for interviews with Smith,
in part to assure that Smith remains in the Philippines.
Embassy response is to emphasize that Smith remains in USG
custody in the Philippines, and refer questions about the
legal status of the case to Smith's lawyer. For the last
year, Smith has declined requests for interviews.

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DECISION NO LATER THAN OCTOBER 2008
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6. (SBU) The Court of Appeals reported October 15 that the
case had been "submitted for resolution," indicating that the
parties had filed all pertinent briefs, the trial court had
submitted the complete record, and the Appeals Court had
selected the three justices who will decide the case. While
various Embassy contacts had initially reported that the
decision could come as early as January 2008, Associate
Solicitor Earl Warren Castillo, who is handling the Marine
Case at the Solicitor General's Office, asserted
unequivocally that the Court of Appeals has 12 months from
the time a case is "submitted for resolution" -- in this
case October 15 -- to issue a decision. Castillo cited the
Philippine Constitution, which states that "all cases or
matters filed after the effectivity of this Constitution must
be decided or resolved within twenty-four months from date of
submission for the Supreme Court, and, unless reduced by the
Supreme Court, twelve months for all lower collegiate courts,
and three months for all other lower courts." Castillo's
view contradicts what we have heard from others, including
Smith's defense attorney, and the Solicitor General's office
itself, but because of his reference to the Constitution, we
believe it to be correct. Thus, while the Appeals Court
decision could come earlier, it should not come later than
October 2008. The ruling could then be appealed to the
Supreme Court.


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KENNEY