In writing about the Subic Rape Case, I have never claimed any special authority, training or competence to do so, being mainly a useless bum, and bow with obsequiousness and embarrassment to those who do. What follows is just a personal summary of my own thoughts on the case. Clearly non-required reading for the Wisest. Now, as writers, we ought to be happy to entertain any reader or fellow writer with our political, social, cultural and gastronomical commentaries. I do so mainly in the hope of a reciprocal indulgence, but am too-often disappointed. So I welcome even the alleged plagiarists (whom we really ought to encourage to steal our memes, and thus be infected by them!). And I guess, I really prefer being called a “pseudo intellectual” as opposed to being called a”Real Intellectual.” I believe my slow-but steady evolution and improvement benefits everyone through the action of whetstones-on-knives. However, I can do very little for the Alleged M*sturbators amongst thee other than to quote Olde Billy: “He who’d a shadow kiss, Hath but a shadow’s bliss.”
Is there any doubt in your mind that “doubt” is a mental or subjective state of the human mind? Indubitably, doubt is a state of mind that arises in human beings when they are given a set of facts and are asked to adjudge the truth of some claim based on them. Doubt arises because we can never have a perfect knowledge of all the facts in the lives of one or two actual persons, and therefore we cannot draw absolute, black and white conclusions about them.
The color of doubt is gray.
The only things we do not doubt are the axioms of Logic, Language and Mathematics which we assume are always true and are way beyond reasonable doubt. Clarifying the nature of “doubt” is important because in all criminal prosecutions, we say that the accused shall be presumed innocent until guilt is proved beyond a reasonable doubt.
The fundamental tenets are well-expressed by the Supreme Court (People v. Dramayo, J. Fernando):
Accusation is not, according to the fundamental law, synonymous with guilt, the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.
In the above, Justice Fernando is describing the essential MORAL DUTY of Judges at the RTC, Court of Appeals (CARP) and the Supreme Court (SCoRP), when deciding criminal cases that come before them.
Thus, to be convicted of a crime requires the following results of DUE PROCESS:
(1) One Trial Court Judge must find moral certainty and no reasonable doubt in the proof of guilt of the accused as presented by the Prosecution.
(2) A simple majority of a division of at least three Court of Appeals Judges must find moral certainty and no reasonable doubt in the proof of guilt of the accused as presented by the Prosecution, and that all records and proceedings and rulings comply with all the laws and rules of Court, including that of the Trial Court Judge.
(3) Finally a simple majority of up to 15 Supreme Court Justices must likewise find moral certainty and no reasonable doubt in the proof of guilt of the accused as presented by the Prosecution, and that all records and proceedings and rulings comply with all the laws and rules of Court, including those of the Trial Court and Appeals Judges.
The RTC+CA+SCORP process represents a three-tiered justice system. I liken these three Courts of Law to the two Houses of the Congress, at least for the purposes of their official ACTS. The Congress for example, is a bicameral chamber, but as we all know, bills proposed in either House do not pass into Law unless both Houses have approved the same and reconciled their provisions. Likewise, we may regard the Final Sentence of Conviction which is pronounced by SCoRP at the end of a successful criminal prosecution to be the equivalent of a Bill being enacted into Law. As in the legislative process, this particular judicial process requires the judgment of “guilty” from each of the three levels of the Court system.
There is one curious observation we can make. Notice that although we have been saying proof of guilt beyond a reasonable doubt in the mind of the Judge ruling on the case must exist, a person can certainly be convicted and punished even if he is found NOT guilty by up to seven out of fifteen Supreme Court justices!
The Law evidently does not consider it a reasonable doubt in the proof of guilt of an accused even if seven SCoRP justices say they have found reasonable doubt in their own minds in such proof of guilt, as long as eight other SCoRP justices say they have found moral certainty and no reasonable doubt in the proof of guilt. I guess, this is like what happens when Congress passes a bill into law. Each House of Congress approves the bill by simple majority rule. Likewise, in a criminal prosecution, the final Sentence of Conviction that truly and legally overcomes the accused’s Presumption of Innocence comes only when all three, RTC, CA and SCoRP find the accused guilty beyond a reasonable doubt.
THE SUBIC BAY RAPE CASE
In the Subic Bay Rape Case, the accused Lance Cpl Daniel Smith was found guilty of raping Suzette Nicolas y Sombillon by Judge Benjamin Pozon of the Makati RTC. However, in March 2009, the alleged victim, pseudonymously called Nicole, publicly doubted her testimony at trial. Then in April, 2009, the Court of Appeals acquitted the accused upon a unanimous decision by an all-woman division of three Lady Justices, Monina Arevalo Zenarosa Remedios S. Fernando and Myrna Dimaranan Vidal.
There are some of our colleagues who insist that the accused U.S. Marine corporal in the Subic Bay Rape Case, was a “convicted rapist” after the Regional Trial Court Judge Ben Pozon found him guilty beyond a reasonable doubt of rape. They claim the Presumption of Innocence was “lost” or “taken away” by Pozon, but that it was “restored” on appeal, when three Judges of the Court of Appeals merely “reversed” the RTC decision. But I find this interpretation self-serving of the Lynch Mobs and a logical stretch. It implies that the Burden of Proof shifted from the Prosecution to the Defense and that the task on appeal was for the Defense to prove innocence of the accused (with what quantum of evidence or proof we cannot say). Yet the Court of Appeals decision itself contradicts this interpretation when Justice Zenarosa declared in disposing of the case that,
“As in this case, a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence, we must acquit. To the point of triteness, it has been repeatedly stressed that in this jurisdiction, accusation is not synonymous with guilt and that this has still to be proved beyond reasonable doubt.”
The three Lady Judges of the Court of Appeals have been viciously attacked by the fading remnants of the Lynch Mobs as old fashioned manangs who just think lowly of “Nicole”.
Now in our recent discussions here at Filipino Voices, unaided by carping lawyers inadequate at explaining their own craft to the satisfaction of mere laymen, two very interesting, but somewhat different issues arose that are still being controverted, or shall we say, “clarified” of doubt. One is a legal, Constitutional question, the other is a matter of ethics:
THE LEGAL QUESTION: THE PRESUMPTION OF INNOCENCE
After a criminally accused person, such as Mr. Smith, has been found “guilty beyond a reasonable doubt” by a Regional Trial Court Judge, such as Ben Pozon, and appeals his case, has he lost the Presumption of Innocence? Has the burden of proof shifted from Prosecution to Defense, and if so, what is the quantum of proof or evidence required to prove innocence? Beyond or within reasonable doubt, total certainty, reasonable certainty?
I have made the assertion that even after the accused is found guilty by the Trial Court Judge, — at the Court of Appeals and Supreme Court stages, the accused has not lost the Presumption of Innocence–which I take to be a Right, like the Right to Life, Liberty and the Pursuit of Happiness. The Presumption of Innocence of a criminally accused person is not a mental state that is supposed to exist in the Judge’s mind. Unlike “doubt”, which is a subjective, judgmental state, the Presumption of Innocence is a Constitutional right, entitlement or possession, like Deed or Title to a piece of property. Thus, when we say judges must “presume” the innocence of an accused, we do not mean they are to “assume” the accused is innocent — after all, the authorities have found “probable cause” that he committed a crime and that is why they arrested and charged him. We only mean that a judgment of “Guilty” must be pronounced and the Presumption of Innocence rescinded if, and only if, Judges do not find reasonable doubt, but find instead moral certainty about the validity of the proof of guilt offered by the Prosecution.
The question that now arises is this. Is it legally correct to say that the accused has been CONVICTED of the crime charged after the Trial Court Judge has found him “guilty beyond a reasonable doubt” and an appeal is filed? My answer is NO. Not until the Judges in “upper houses” of the Judiciary likewise do as Fernando preaches: find moral certainty in their own minds as to the proof of guilt of the accused.
These considerations explain the reason why uniformly and consistently, appellants in criminal cases decided by the Court of Appeals and the Supreme Court are referred to in the formal written Decisions, as “Accused Appellant” and never, for example, “the Appellant Convicted Rapist” or “Appellant Convicted Perjurer”, et cetera.
I have likened the argument that it is okay to think of and label the accused as a CONVICTED RAPIST simply upon the strength of one RTC Judge’s decision as the Constitutional equivalent of those in the House of Representatives (HoRRP) calling for a Unicameral Con-Ass. Just as the House cannot ACT for The Congress, neither can the RTC enact a conviction without the further affirmation of the CA and SCoRP upon the same exacting degree of moral certainty.
THE ETHICAL QUESTION: PARITY OF PRIVACY RIGHTS IN RAPE CASES
The first question to ask oneself is, WHO is the victim in a case of rape: the Accuser or the Accused? Remember that in a rape case, one of these two parties will be proved to be a liar. Now please consider the following pertinent provision of the Republic Act No. 8505, the Rape Victim Assistance and Protection Act:
Section 5. Protective Measures. – At any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public.
Clearly, the VICTIM in a rape case could be EITHER the Accuser or the Accused, which is why the Law protects the Right to Privacy of both in EQUAL measure.
Amazingly, two weeks ago, Evalyn Ursua, fired lawyer of Nicole, and lawyer Katrina Legarda, told Cheche Lazaro on ABSCBN News’ Media in Focus TV talk show that the Philippine Daily Inquirer and anyone else, including bloggers, publishing her full name and pictures are CRIMINALLY LIABLE for “revealing” such information about the alleged rape victim of the accused Lance Corporal Daniel Smith.
I think a plain-reading of RA 8505 would suggest that it is Ms. Ursua who is criminally liable for wantonly violating the parity of privacy rights between Accuser and Accused in a rape case prosecution, because WHO the victim is will not be decided until the end of the case in acquittal of the Accused or his final and executory conviction and sentencing by SCoRP.
Regarding the “Lynch Mobs” and the general behavior of those in Mass Media and the Blogosphere for whom the Subic Rape case was always just a Political Spectator Sport in which the crowd participates activistically, I have raised several ethical questions related to the above legal and Constitutional questions because Presumption of Innocence is mentioned in the Code of Ethics of Professional Journalists:
I. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by omission or improper emphasis. I recognize the duty to air the other side and the duty to correct substantive errors promptly.
VII. I shall not, in any manner, ridicule, cast aspersions on, or degrade any person by reason of sex, creed, religious belief, political conviction, cultural and ethnic origin.
VIII. I shall presume persons accused of crime of being innocent until proven otherwise. I shall exercise caution in publishing names of minors and women involved in criminal cases so that they may not unjustly lose their standing in society.
In making illegal and unethical cause with Ms. Ursua, the Gabriela activists (all one and a half dozen of them) much that is obviously unethical, immoral, unfair, unjust and plain badkharmaphilic — are on plain display to this day among the Lynch Mobs in the Mass and Blog Media.
The Lynch Mobs are pitiably disconsolate and unconsolable. They are reduced to insulting the Lady Justices of the Court. But their keening, ululating angst is well-deserved for being self-imposed as a steadfast denial of the eternal principles of the Law. These are the Just Desserts of Rash Judgment.
If we must insist on viewing Current Events as a Spectator Sport, at least we must understand and play by the Rules of the Game.
[Cross posting at Philippine Commentary and the Global Post]
Popularity: 1% [?]
Manong Dean,
The two of us have run this topic over the hot coals many times over. Your characterization of doubt as being gray is quite apropos.
As you well know I have not posted here but referenced only my revisitation of the case in so far as Prof. Abe brought out the question of Nicole having been slapped the "presumption of non-innocence (by the CA)."
Having done so, I've really moved on.
But since you restate your well argued perspective, I am curious about your own direct reaction to Sir Abe's thesis.
Warmest consoled thoughts.
The notions we have been debating, such as Presumption of Innocence and Rights of Privacy have a broad applicability and the concern over their defense extends far beyond the Subic Bay Rape Case itself. I have never even been concerned about the actual outcome of that case, as I have no stake in either party winning or losing. My principal concerns have always been the reaction of the spectators and the principles of the Law and Ethics that apply to them. You may wish to forget this particular rape case, but these principles will appear again and again in similar circumstances far removed from the VFA, rape or America.
To loop this off. Mistake not my nationalist perspective for anti-Americanism. As for ethical parameters of journalism, we have both been in MSM. While the arguments may at times become impassioned, we share the same ethical commitments and the next issues we may disagree on in the future will be within the same margins.
The Ethical Question deserves more discussion. The end of the case does not "loop off" the problems that arose as a result of it.
For example, I would like to get a clear assent from you that in fact, from the very beginning, the Privacy Rights of the Accused were not given Parity with those of his accuser, because everyone had assumed that the Accuser is automatically the Victim in a Rape Protection provision of RA 8505.
In other words, if you insist that "Nicole" deserved privacy and anonymity, you must also uphold Daniel Smith's right to it.
Yet this is a Blind Spot for many to this day. To this day, many on this thread have not bothered to read and understand the Rape Victim Protection Act RA 8505.
It is one of those "Emperor has no clothes" kind of thing!
Yes. And I've read RA 8505. Are we done? Surely. :)
Megan's Law frequently asked questions. Megan's law relates to the rights to privacy.
http://www.meganslaw.ca.gov/faq.aspx?lang=ENGLISH...
Honestly, djb, after reading the first few words of your blog, I hate to think that this will be the day.
Why be apologetic? Do you write so as not to antagonize whom you already think beforehand will give you back a contrary view if not hit you from the hip? Do we now have to carry our own individual mental baggage each time we post?
From what I know, you won the best political blog. And that alone probably indicates a level of aristocracy, doesn't it? You're not being a lawyer doesn't make you less than a good legal scholar, does it? Is it because you know jcc or bencard is just around the corner out to debunk whatever little or big think you have read about law.
I thought you were the spider to the fly? Point is, FV is fast becoming an unhealthy field, field with a lot of 'swine flu' if you please follow my drift.
Primer, If DJB is indeed apologizing, what is wrong with that?
Or if he is simply responding to issues raised, there is nothing wrong with that either.
I may not always agree with DJB. I may not like how he labels such groups or institutions as fascists or talibans,but do we always have to like everything in everyone?No!
About mental baggage, I also have one.
May kasalanan pa nga ako ke djb. Over at one blogger's site,one was attacking his credentials,eh di naghanap ako ng post na me credentials nya at me pinost akong comment na dinidescribe nya ang credentials nya,ang lumabas lalo pang di naniwala at nakakita pa ng butas. Lumabas pa tuloy akong manggagatong.
For that, I apologize to DJB.
I read DJB's legal views because he bothered to do the research,not just simply lay down the words verbatim, he gives his side and own POV.
some views I find weird like presuming innocence,even though convicted by an RTC jugde, I asked why.so but he already gave me an answer. If I still find it BS,then that is up to me, bakit pa ako nagtanong?
I don't give or accept apologies because I never take anything personally enough to warrant such an emotional display. But you always were a sweet softie Karl. You're not a pseudo intellectual M*asturbator are you? haha.
I am not even an intellectual, how can I be pseudo intellectual? as for the other word connected to it, that's private. heheh.
This was gray to begin with. Let's face it, they had the hots for each other. Spontaneous combustion. She is cute, he is cute too. So cuteness begot cuteness. Being dumped out of a van like a pig was the real crime. They were kids who played with matches, and one got burnt.
:D Hahaha!
Seriously speaking, this one is a tough call. I was young once too. If you know what I mean – foolish, stupid, etc. The more I read it, the more I understand it but not in the way people there interpret it. I live in another world, have practically all my life, so I don't carry the same baggage. But the lady justices saw it correctly, from a human angle. (Aren't women just great? They're more astute than men in reading the heart.)
As one US Marine veteran commented on another site: "The future Mrs. Daniel Smith."
JAB,
You mean Mr. and Mrs. Daniel and Nicole Smith? That would be too bizarre!
Not my comment, borrowed it from another site. Stranger things have happened. Who knows?
Ang tawag diyan the ex-future Mrs. Daniel Smith :)
Don't be fooled by the title. DJB's message is straightforward — if DingG, ManuB, AbeMargallo and others still do not know what they had done wrong, then DJB repeats : But their keening, ululating angst is well-deserved for being self-imposed as a steadfast denial of the eternal principles of the Law. These are the Just Desserts of Rash Judgment.
I didn't suggest that. Just a comment from a veteran. Who knows? Stranger things have happened.
Honestly, I thought I edited that out at the end! Supposed to be part of a Kinder, Gentler DJB….
The Lynch Mobs will NOT accept the facts and evidence in this case because they CHOOSE not to… not because of the facts presented.
…but it is because Daniel Smith is a US military guy – no more, no less.
Racism!
Meeh,
Not so much "racism" as such but a really mean spirited "Crab Mentality" which wanted Daniel Smith to suffer what Filipino convicts suffer in Bilibid Prison: cruel indignities, inhuman conditions, and kids mixed in with adult prisoners. — even before his case was decided as final and executory.
What irked many self-described patriots was actually this: why should someone already convicted by the RTC judge not suffer years of incarceration with the rest of the unfinalized prisoners in Muntinglupa just because he is an American covered by some treaty? They did not like the idea of him being in an air con cell in the US Embassy, instead of possibly being raped himself by the oXo sigue sigue bahala na gangs in Munti. And because the US Govt stuck by its soldier and citizen and implemented the VFA to the letter, whilst the Philippine Govt behaved like itself, the old accusation has been raised of imperialist domination over the Justice system. So of course, when Smith was acquitted the howling started and may never stop.
DING, DJB,
Can we get past this Nicole v. Smith already? — Its one dish that we have been feasting at the table for sometime. Its becoming tasteless already, literally.. hahahahaha !!!
can't blame you jcc. You blogged yourself to near exhaustion on this one the last time out. Some may understand most of it, but lots of people don't, or have only the vaguest notions about the issues, which as I have tried to draw them are legal and ethical in nature. As such they straddle several different areas of concern and debate that extend far beyond the case of Suzette and Daniel. (ahem).
How can we get past this if you insist on using a formulation like "Nicole v. Smith" which unfairly maligns the person who has just been acquitted by the Court of Appeals and continues the fiction of "Nicole"??? If anything, Smith ought to charge the Lynch Mobs for crimes under RA 8505.
Perhaps it is due to pure ennui. If so I would understand.
Sa tutoo lang malapit ng maging comedy ito, lalu naat nayroon rito sa ating na ngayong lang tunay na nasusuri ang isyu….bugbog na ito. The horse has not only been beaten after death it has also been cremated yet it is being resurrected. Dito na lang sa FV.
DJB, I am past ennui. And If I ever need a top notch paralegal I know who I'll call.
Okidoki.
Sweet, but bizarre!
NIcole v. Smith?
Accuser v. Accused?
Who was the real victim?
Both.
DJB,
I had a rather laborious labor day yesterday when I finally read the CA decision you uploaded. It’s because the pdf “search” button isn’t working in your scanned copy of A.J. Zeñarosa’s ponencia.
I might run a risk of missing dotted I’s and crossed T’s so I didn’t venture to convert the file into formatted text. (I’ll probably do it later, if I got time. OmniPage might do the trick.)
Well, here’s hoping that everyone will notice the real color of doubt because the text I read was written in GRAY…not in “default” or “automatic” black.
Megan's Law frequently asked questions. Megan's law relates to the rights to privacy.
http://www.meganslaw.ca.gov/faq.aspx?lang=ENGLISH
You found DJB's piece apologetic ?
Exactly. imho, this was consensual sex but dumping her shoddily made Smith learn what the statement "hell hath no fury than a woman scorned" means.
Yup yup yup. Agree that it was consensual and that the "real crime" was dumping her shoddily. Smith was just learning what the adage "hell hath no fury than a woman scorned" meant. It put the US-GRP relationship to the wringer.
I can just imagine the woman's side saying "make an example out of him"
yeah, sorry about that, but apparently the CA does not provide electronic copies. I uploaded scanned pages organized into a pdf, so "search" really does not work.
And? What do you think of the fact that Daniel Smith's name is used by everybody else as if he were NOT the victim of this rape case?
Do you not now think it was illegal and unethical for newspapers and columnists and bloggers to have identified him whilst inconsistently and piously protecting Nicole–the accuser, liar and victimizer and her privacy?
Very brilliant, Dean.
But here, are you willing to grant as much to suspected terrorists or suspected communist assassins? I think the issue raised against you once is your enthusiasm in setting the principle if they involve your pet peeves.
DJB,
My musing is entirely a personal request and opinion and not a directive that we stop the discussion for you were right to some extent that there lots of issues here aside from the "presumption of innocence". I did not thread on other issues because I supposed those were basic and everyone should know them but I have presumed too much.
The right to privacy has to be balanced with the free speech right. Privacy right is relegated to the right of the pulic to information. Where in this case both accused and alleged victim were adults, their being named in news dispatches does offend Sec. 5 of RA 8505, specially if the press obtained the real identities of the parties from the court records. If the victim is a minor, there is a likelihood that this piece of legislation may be declared constitutional, but there is no assurance that it would be so.
(still cannot post beyond 3 pars, please continue)
i mean, does not offend Sec. RA 8505.
If the literal construction of the provision of RA 8505 will result to prior restraint, the law offends the constitution and therefore invalid. Prior restraint is justified if unmitigated speech has the tendency to create or provoke instantaneous breach of the peace viewed under the doctrine of "clear and present danger". State security is never involved in this case and this doctrine does not come into play.
If Judge Pozon has ordered a closed-door proceedings in this case, such order has to be narrowly tailored such that it does not restrict free press more than what is necessary for the orderly conduct of the proceedings. But after the case has been tried and decision has been rendered, the press has the right to print the names of the parties in the case and report the outcome of the case. There is a big difference between reporting the decision and editorializing the decision.
But once the case is appealed, prudence dictates that we refrain from editorializing it. Editorializing the news can subject the person to contempt proceedings but no substantive law proscribes against editorializing a court decision because the greater issue here is press freedom or as they say in the U.S., first amendment.
A court decision is not immune from attack from those who disagreed with it.
Yes, BOTH are victims of Gabriela, Ursua, Maza, Hontiveros, Madrigal, Salonga, Legarda, etc.
They were BOTH USED by those people and groups for their OWN political and career aspirations.
Judge Pozon let the media and the users PRESSURED him to convict Smith eventhough the facts and evidence presented were pointing to consensual sex. He based his conviction on EMOTION.
He should just QUIT because a JUDGE should NOT let his emotions run the course… It should be based on the LAW and the FACTS presented.
Smith suffered the most… three years of his life was wasted by an INCOMPETENT Judge..
Suzette and Smith were BOTH used by Gabriela, Pozon, Ursua, Madrigal, Legarda, Hontiveros, etc., for their OWN political and career aspirations.
Judge Pozon let those users PRESSURED him to convict Smith eventhough all the FACTS presented pointed to consensual sex.
Judge Pozon should just QUIT being a Judge because he MUST based his verdicts and convictions on LAW AND FACTS and not based on EMOTION.
DJB,
On the issue “presumption of innocence” I consider Nicole v. Smith case to have been over-analyzed and over-indulged.
I consider the privacy issue non-issue despite RA 8505 while you would bet your life on its observance. I see where you were coming from and I recognized your indulgence justified and I assumed too much that many has recognized it as “press freedom concern”, (first amendment issue” in the U.S.) and therefore assumes priority over privacy concern.
Let me indulge on the issue myself.
(please contiue, cannot post beyond 3 pars.)
RA 8505, viewed from free expression of the press will be considered a prior restraint, therefore unconstitutional. Parties in a case, rape included, may be mentioned and their names printed in a newspaper if the media have access to it through legitimate sources. In this case, the media got the names of the parties from court records and latter printed the promulgated decision. These are public records of paramount public interest and therefore the public have an overriding right of access to them. Parties here have no expectation of privacy, more so because they are not infant/minors whose interest may tilt the balance of privacy over free speech. Free speech may be curtailed if the unimpeded exercise thereof is likely to provoke imminent lawless action in the context of “clear and present danger scenario.” No such danger is imminent in the case of reporting the names and the personal circumstances of the parties in this case, nor this case can be contextually read as a “national security” concern to effectively bar the press from reporting the case and mentioning the parties involved.
(please continue)
In times where closed-door hearing is justified for sex crimes, such closure will be balanced between the substantial interest of the government to maintain an orderly court proceedings as against the right of the public for information. The closure to public/media will further be analyzed as to whether it has been narrowly tailored to serve that substantial government interest and it does not restrict more freedom than is necessary. Here the closure of the Nicole v. Smith case to the media, if one had been ordered by the trial court, had already been mooted when it has rendered a decision convicting Mr. Smith of the offense of rape. The press is free to report the outcome of the case, (including the name of the parties), but where appeal has been perfected, the press must refrain itself from editorializing and should restrict itself to pure reporting and remind the public of the possibility of the conviction being reversed. It is here where overzealous press had crossed the boundaries of legitimate reporting and had degenerated into a “lynch-mob”.
(please continue)
While the case is pending, the press should not take an adversarial position that may tend to embarrass the court as the press practitioner may be subject to contempt of court. The punishment is not for privacy violation, but the need of the court to look at the evidence of the case more objectively without being badgered by the press to decide the case according to its bias.
But once the Court has rendered a final verdict, anyone has a right to agree or disagree with it. My agreement to the outcome of this case is no more legitimate than the other fellow who disagreed with it.
ok lang sana if people just disagree.
but its worse — accusations of a coverup, bribery, etc… alot of people are confused about multiple versions of facts, as well as the basis upon which the CA made its decision.
i think this is a teachable moment, to teach pinoys how the justice system works (or doesnt work).
but the MSM's blowing it…
Not to be stubborn, but one indubitable 'fact' emerging is that Daniel admitted knowing Nicole as "dead drunk" when he had "consensual sex with her."
If this is 'unassailed' or if we accept that Nicole was, for all intents and purposes. either 'de facto' unconscious – "dead drunk" — does this not come close to or is somewhat akin to necrophilia?
To clarify this aspect of the case surfaced anew in the recent exchanges in the threads on Prof. Margallo's post and DJB's own 'For The Record Lang post…
You dont doubt, since examination was done on the victim. She testified, the sex was not consesual. After
the rape, she was dumped by the rapist somewhere. Smith is an acquited rapist…
OH BOY, THE SYSTEM IS SO SO f__k UP. I have posted a comments much earlier but I did not see them posted. So what i did was to reedit it and posted it back. System won’t allow long comments to i chop them into chewable chunks.. then afer several hours i found the previous posts juxtaposed with the edited posts…. wheeewwwww.
my apology…
Doubts in Gray
There is doubt in the mind of the doctor at James Gordon Hospital.
There is doubt in the medico-legal evidence (on the complainant’s injuries) –
was there vigorous consensual sex or was there sexual assault?
There is doubt in the complainant’s alleged intoxication/unconsciousness.
There is doubt in the complainant’s testimony due to her inconsistencies and lapses.
There is even doubt on Makati RTC Judge Pozon’s accurate reference to a SCoRP decision – G.R. 95319, mainly that the term “intoxication” is nowhere to be found in the said document. (It was a good thing that his decision to convict was reviewed!)
What is left undoubted is that the accused is to be accorded his constitutional right of presumption of innocence (POI). POI even the NUJP sanctified in their ethics code.
What is left undoubted is that some in the MSM, some bloggers and, of course, the lynch mob falsely convicted the accused even after his acquittal.
At least the complainant signified her doubt…when can we expect some form of apology to the accused from the lynch mobbers because of their intrusion to his privacy right and their presumption of guilt?
hahahaha, as usual baycas, your sharp analysis stands out. :)
Stop this deep sickening analysis of Nicole V Smith. It’s over with! Kaput!
LET’S LOOK AT the violation of Nicole’s privacy by the pekeng-peryodistas. I HAVE NOT HEARD FROM ANY SINGLE PEKENG-PERYODISTAS championing her privacy plight!!!!!
Nor anyone of FV’s legal luminaries!!!!
HA!HA!HA!HA!HA!HA!
Hindi kayo mahiya?????HA!HA!HA!HA!HA!HA!
With all the ripping and analyzing of Nicole and Smith … has anyone bothered to look and see Nicole’s privacy was violated by the pekeng-peryodistas?
Has anyone took up the fight for Nicole’s privacy? Hey, yo, legal luminaries … why so silent on Nicole’s privacy? What if it happened to your daughters …
I wish it would happen so you’d know what i’m talking about ….
HA!HA!HA!HA!HA!HA!HA!