The Department of Justice on Friday vowed to file its own motion next week asking an Olongapo City court to recall its order for the early release of US Marine Joseph Scott Pemberton, who was convicted in 2015 of homicide for killing a 26-year-old transgender woman.
Justice Secretary Menardo Guevarra said he hoped the Office of the Solicitor General would join the DOJ in its motion.
The Olongapo City Regional Trial Court Branch 74 earlier ordered the release of Pemberton, just over five years into his service of a prison term of six to10 years.
The court said Pemberton had accumulated good conduct time allowances (GCTA) on top of his actual time served.
By its calculation, the court said, Pemberton had served a total of 2,142 days and earned 1,548 days of GCTA. Taken together, this amounts to 3,690 days, or 10 years, one month, and 10 days — more than the 10-year maximum penalty imposed on him, the court said.
The family of the victim, Jennifer Laude, has filed a motion for reconsideration, prompting the Bureau of Corrections to suspend Pemberton’s release.
Laude, a 26-year-old transgender woman, was found dead in the bathroom of a motel room in Olongapo City on October 11, 2014.
Pemberton was convicted in 2015, a verdict that was affirmed by the Court of Appeals.
Pemberton’s lawyer, Rowena Garcia-Flores, said officers from the Bureau of Corrections have attested to the good conduct time allowances earned by the US marine.
Garcia-Flores said Pemberton has been “guarded everyday 24/7” by BuCor officers, while being detained at the Philippine military headquarters in Camp Aguinaldo.
“These officers also attested to the good conduct of Pemberton, based on their own personal knowledge,” Flores said.
Pemberton’s lawyer made the statement after the Laude’s family filed a motion for reconsideration before the Olongapo City Regional Trial Court seeking to overturn its earlier decision to release the American soldier due to accumulated GCTA points.
The victim’s family argued that there was no proof of Pemberton’s good behavior, conduct and participation in any rehabilitation activities that would earn him GCTAs.
Flores said the Laude family merely speculated and failed to show any act of Pemberton that violated prison rules.
Pemberton’s lawyer said the certification of good conduct issued by BuCor carries with it the “presumption of regularity” as the Laude family failed to disprove it.
Flores also asserted that Pemberton is entitled to GCTAs because he was not convicted of a heinous crime.
She said her client should not be treated differently than the thousands of inmates who have benefited from the GCTA law, claiming that there is “no substantial distinction between them.”
However, Lawyer Rommel Bagares, who represents the Laude family, insisted that Pemberton cannot invoke the equal protection clause because there is a difference between foreign military armed forces in the country and other people accused of crimes.
Citing the 2015 case of Laude v. Jabalde, Bagares noted that the Supreme Court said “there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused.”
Besides, Bagares said there is no agreement between the Philippines and the United States stating that Pemberton is covered by the GCTA law, making him unqualified for it.
He said Pemberton’s trial was governed by the US-Philippines Visiting Forces Agreement, which has a provision on jurisdiction over US personnel who committed crimes in the Philippines.
The US soldier appealed his conviction all the way to the Supreme Court but subsequently withdrew his petition recently.