I was shocked when Noli De Castro woke me up last Monday to inquire if there was truth to a newspaper report that the Laude family had asked for P36 million and six US visas as settlement for the murder case against Joseph Scott Pemberton. Pemberton had rested his case last Tuesday with the presentation of his third and last witness, Dr. Raquel Fortun. The defense asked and was granted time to file their written offer of evidence and the prosecution was give an even time to comment thereto. Thereafter, the court granted what really is an optional oral summation on September 14 and set the promulgation of the case on December 14.
I was shocked because with the defense resting their case, it is now a legal impossibility for the family to accept a settlement, even if it wants to. Unlike the previous case of “Nicole” for rape, which could legally be settled, the case versus Pemberton is for murder and can no longer be settled after plea-bargaining because murder is a felony committed against the state.
I do concede that the practice in reality is different from the theory. Criminal cases are settled all the time with private complainants executing affidavits of desistance claiming that the filing of the case was due to a “misunderstanding”. Such was the case with “Nicole” who even belied the fact that she was raped. Naturally, the prosecutors would be compelled to move for dismissal, but not because of the settlement. The ground would be in the absence of a complainant; there would be an impossibility to prosecute. The exceptions to the prohibition on settlement in criminal cases are private crimes such as rape, which can even be settled if the accused should marry the offended party; and “quasi-crimes”, because they are felonies committed not because of criminal intent but because of recklessness or negligence.
Murder, I reiterate, cannot be settled beyond the plea bargain stage.
Even the Rules of Court provision on plea bargain is new. It was not in existence 25 years ago when I was in law school. The rule against compromising criminal cases was absolute when I took up my criminal procedure under the late Justice Serafin Cuevas. I supposed it was introduced as a means of facilitating settlements but subject to the concurrence of two conditions: one, the private complainant must consent, and two, there must be a plea to a lesser offense. The latter condition means that the accused must be convicted of a crime despite the extinguishment of the civil liability.
I am not unmindful that as a private prosecutor, I could suffer the same fate as my law school classmate Evalyn Ursua, private prosecutor for “Nicole”. One fine day, Evalyn found herself fired by Nicole and substituted by another lawyer who signed the affidavit of desistance together with “Nicole”. The possibility is even more pronounced since we have the same City Prosecutor as in the Nicole case; and worse, the counsel of Smith is now Undersecretary of Justice designated as in-charge of the Laude prosecution. The difference though is Jennifer is dead and cannot sign an affidavit of desistance. Moreover, unlike Evalyn who, as our class valedictorian, is far more reserved and academic in her actuations than me; I will be very clear: I will move for the disbarment for any lawyer, private or public, who will talk directly to my clients for any compromise of the Laude case. If Evalyn was more reserved in the manner by which she dealt with the counsels of Smith, expect no such reservations for me. I will scream and kick and will give any such unethical lawyer what they truly deserve: to be purged from the roll of attorneys.
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On another issue, I was not surprised that the Iglesia ni Cristo ended their five days of mass protest after “they have come to terms with government”. I was vocal against what I saw was a violation of their freedom of religion precisely because I was sure that a terribly unpopular administration would have to strong-arm the Iglesia into supporting its slate in the upcoming 2016 elections. I am sure that Mar Roxas and Leila De Lima got what they wanted.
I do not take this decision against the INC. I completely understand their predicament. The guarantee against state interference in church affairs exists precisely because governments will always attempt to infringe on it. I am only hoping that after 2016, the INC can call it quits with PNoy and his cohorts and can join the nation in henceforth demanding accountability and good governance from the future government.
Had PNoy’s cohorts allowed the legal system to work, the issue that should have been resolved by the Court is whether the internal disciplinary procedures of the INC was consented to by one of its high-ranking ministers and hence, covered by the principle of benevolent neutrality. As it stands, PNoy’s machinations deprived us of what could have been another important INC contribution to our jurisprudence on freedom of religion.