US defies court order to jail convicted Marine in the Philippines

OLONGAPO CITY, Philippines-A "tug of war" ensued between US security personnel and the Philippine National Police over the custody of US Marine Lance Cpl. Joseph Scott Pemberton after a court here found him guilty of homicide for the death of Filipino transgender woman Jeffrey "Jennifer" Laude, whose body was found in a motel here in October last year.

Regional Trial Court Judge Roline Ginez-Jabalde, in a decision read by Branch 74 clerk of court Gerry Gruspe for more than three hours, sentenced Pemberton to between six and 12 years in prison.

Jabalde also ordered Pemberton to pay more than P4,585,250 ($97,258 at P47.145 to a dollar) to Laude's family.

After the court handed down its decision about 4:30 p.m., the American security detail protecting Pemberton refused to surrender him to the PNP, which is tasked with delivering him to the national penitentiary.

Pemberton's lawyers filed a new motion at 5:30 p.m. asking the court to clarify where he should be detained.

At 6:30 p.m., the court issued a ruling directing Pemberton to return to his detention facility at the Joint US Military Assistance Group (Jusmag) compound in Camp Aguinaldo, Quezon City, for five days until the Visiting Forces Agreement (VFA) Commission, Department of Justice (DOJ), PNP and US Embassy issue a memorandum of agreement on where Pemberton would be detained.

The convoy taking Pemberton to Metro Manila left the court compound here at 7 p.m.

The five-vehicle convoy escorting Pemberton arrived at Camp Aguinaldo at 9:28 p.m.

Col. Noel Detoyato, public affairs office chief of the Armed Forces of the Philippines, said the Bureau of Corrections (BuCor) now has official custody of Pemberton.

This means that BuCor personnel will be guarding him and not US military personnel.

"BuCor now has custody of him, so they are in charge of his security and the expenses. The AFP takes care of perimeter security," Detoyato said shortly after Pemberton's arrival.

It was still unclear as to how many BuCor personnel will be guarding him.

VFA Commission head and ex-AFP chief, retired Gen. Eduardo Oban, accompanied Pemberton to the facility.

BuCor procedures for a newly arrived prisoner include a reception process of a medical check-up, taking of his mugshot photograph, fingerprints, etc.

Appropriate facility

Jabalde earlier ordered Pemberton's temporary detention at the New Bilibid Prison in Muntinlupa City while the US and Philippine governments agree on the appropriate facility where the American soldier will be held under the VFA, which allows US forces to conduct military exercises in the Philippines.

The judge said the VFA was not clear as to which Philippine agency would oversee Pemberton's detention.

Until the Philippine and American governments agree where he would be detained, Pemberton "should be committed in the New Bilibid Prison where national prisoners are confined or detained under [the supervision of the] Bureau of Corrections," she said.

The case revived a debate over which government should have custody of US military personnel who run afoul of local laws under the VFA the two allies signed in 1998.

The VFA says the Philippines can prosecute American service members, but that the United States has custody over them "from the commission of the offence until completion of all judicial proceedings."

However, the Philippine Supreme Court ruled in 2009 that convicted US personnel must serve their sentences in the Philippines.

In a compromise last year, the United States agreed to have Pemberton detained at Jusmag guarded by US Marines with an outer ring of Filipino forces.

Despite the US Embassy request that it continue to retain custody of Pemberton, the DOJ yesterday said the PNP would take custody of the convicted American Marine so he could be transported to Camp Aguinaldo in Quezon City, where he will be received by BuCor personnel.

"He (Pemberton) will be transported, under the guard of personnel of the Philippine National Police, to Camp Aguinaldo. He shall be received by personnel of the BuCor and immediately detained there until his appeal is decided with finality by our courts," the DOJ said in a statement.

At around 7 p.m., Justice Undersecretary Emmanuel Caparas told reporters that Pemberton was "already on his way to Camp Aguinaldo under PNP guard."

The DOJ said it was "possible" that Pemberton may be transferred to another detention facility "at some point," as provided under the VFA.

"In any case, his detention shall at times be carried out within Philippine territory, under guard by and in line with existing regulations of the BuCor, in observance of the Supreme Court's ruling in Nicolas v.

Romulo (11 February 2009)," the DOJ added.

It was referring to the case involving American Marine Daniel Smith who was accused of raping a Filipino woman in 2005 but was later acquitted after the complainant recanted.

The Department of Foreign Affairs said that under the VFA, Pemberton should be detained at Camp Aguinaldo.

"The VFA provides that the confinement or detention by the Philippine authorities of US personnel shall be carried out in facilities agreed on by appropriate Philippines and US authorities," Assistant Secretary Charles Jose, spokesperson for the DFA, said in a text message. "In this case, the agreed location is in Camp Aguinaldo," Jose said.

'Defying court order'

Bayan Muna Rep. Neri Colmenares is opposing the DOJ decision to keep Pemberton at Jusmag.

"We denounce the US and the DOJ for defying the court order and making a mockery of our justice system and sovereignty… The DOJ should stop conniving with the US in protecting Pemberton and denying justice to us Filipinos," Colmenares said.

He said there should be no debate on where Pemberton should be held.

Colmenares said Pemberton should be jailed at the New Bilibid Prison.

He noted that the existing treaty with the US provided that a convicted American soldier "shall be confined at the national penitentiary pending clarification of the agreement."

Bayan Muna Rep. Carlos Zarate said Pemberton should be treated like any convicted criminal. "No more special treatment to a criminal like him. It will be a pyrrhic victory and his conviction an empty one if he continues to be coddled by the US while the government does nothing," he said.

Pemberton was charged with murder but the court said facts presented during the trial showed that the crime satisfied the requirements of homicide.

Jabalde, in her ruling, said Pemberton's conviction should "set a public example to all military and civilian personnel of the US, like the accused, who from time to time may visit the Philippines… to respect every Filipino citizen regardless of his or her sexual orientation."

"Prisoners sentenced to more than three years and one day are classified as national prisoners," Jabalde said.

The judge also cited rules issued by the Supreme Court's Office of the Court Administrator, "so she asserted the high court's power to decide where a convict would be held," said lawyer Harry Roque Jr., the Laude family's lead counsel.

"[Pemberton] is now a convict although he has the benefit of appeal. He no longer enjoys the presumption of innocence," Roque said.

Michelle, Laude's sister, said they expected a murder conviction because the court cited forensic evidence indicating that Laude was drowned in a toilet bowl.

The court described Laude and Pemberton as consensual sex partners, who rented a room at a motel where Laude was later found dead.

Treachery not established

Jabalde said Laude's killing "only amounted to homicide" because the prosecution failed to establish that the American soldier used his superior strength and had employed treachery when he killed Laude.

The judge said for the killing to be qualified as murder, qualifying circumstances, such as treachery, abuse of superior strength and cruelty must be present.

"For treachery to be considered, two elements must concur: (1) the employment of means of execution that gives the persons attacked no opportunity to defend themselves; and (2) the means of execution were deliberately or consciously adopted," she said.

The prosecution, she said, also failed to prove existence of abuse of superior strength.

"Likewise, abuse of superior strength is not present when the killing was unplanned and not premeditated. The events leading to the killing of Laude were not planned and not deliberated," she said.

Jabalde said the prosecution's claim that treachery was involved in the killing was mere "presumption" as there were no "particulars" in manner of aggression made.

"The qualifying treachery may not be simply deduced from presumption," she said.

The mitigating circumstance of "passion and obfuscation," she said, was present in the case.

There was also no cruelty when Pemberton committed the crime, Jabalde said, noting that drowning Laude was a necessary act to kill her and was not done to increase her suffering.

She said Pemberton's actions were provoked by his discovery that Laude was a man.

"Pemberton was so enraged and incensed by the deceased's misrepresentation [that Laude was a woman] and in the heat of passion he arm-locked the deceased, dragged her inside the bathroom and dunked [her] head into the toilet bowl," she said.

Pemberton, an antitank missile operator from New Bedford, Massachusetts, was one of thousands of American and Philippine military personnel who participated in a joint exercise last year.

He and a group of other Marines were on leave after the exercise and met Laude and her friends at a bar in Olongapo, a city known for its nightlife located outside Subic Bay, a former US naval base.

In a statement, the US Embassy noted that the Olongapo Regional Trial Court Branch 74 had reached a decision in the case of Pemberton.

"We will continue to proceed in full compliance with the Visiting Forces Agreement," it said.