Saturday, April 11, 2009

Dacer, DNA and Brady Violations

An extradition hearing is held to enable the court to decide whether the defendant is subject to surrender to the requesting government. The District Court’s function in an extradition hearing is not to act as a rubber stamp to an extradition request but to ensure that our (American) judicial standard of probable cause is met by the Requesting Nation (US v. Valentin Linson 88 F.Supp.2d 1123). The evidence must demonstrate probable cause to believe that the accused committed the crime charged. Merino v. U.S. Marshall, 326 F.2d 5, 12 (9th Cir.1963).

“The range of evidence that a defendant may introduce as to probable cause at an extradition hearing is limited. The general rule is that evidence that explains away or completely obliterates probable cause is admissible, while evidence that merely controverts the existence of probable cause is not” (Krenar Hoxha v. Troy Levi, 3rd Cir. No. 05-3149, Oct. 3, 2006).

Evidence to support probable cause is concededly of lower quantity and quality compared to evidence to support a conviction. It is for this reason that DNA evidence, if available, is material, for DNA evidence trumps all evidence in the determination of guilt or innocence.

In the case of US v. Sczubelek [402 F.3d 175, 178 (3d Cir. 2005)], the Third Circuit Court of Appeals stated that DNA is more reliable as a means of identification than fingerprints or even photographs. The Philippine Supreme Court is of the same view, holding that:

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. [People v. Joel Yatar (G.R. No. 150224, May 19, 2004)].

That DNA trumps all evidence, is proven by the cases reopened by the Innocence Project ( The Project has successfully overturned guilty verdicts in 235 cases, with the presentation of post-conviction DNA. The DNA evidence proved either that the accused was not at the scene of the crime, or that the DNA found at the scene of the crime matched the DNA of another individual.

The two cases cited below, illustrate how post-conviction DNA trumped all other evidence presented in court.

Case of Steven Barnes

In the case of Steven Barnes, the evidence for the prosecution consisted of:
  1. Microscopic analysis of hair found on Barnes’ truck, which was said to match the victim’s, and did not match the hair of Barnes;
  2. Soil samples from Barnes’ truck taken one year after the crime, was said to have “similar characteristics” with soil from the crime scene;
  3. There was testimony of a jailhouse informant, who said that Barnes confessed the crime to the informant (shades of Mancao and Aquino’s alleged statements in Las Vegas).
The victim in Barnes’ case was raped and murdered. The DNA of sperm found on the body of the victim did not match Barnes’ DNA.

Case of Ryan Matthews

In the case of Ryan Matthews, a man wearing a ski mask entered the victim’s store and demanded money. When the victim refused, the perpetrator shot him four times and fled, taking off his mask and diving into the passenger side window of an awaiting car. Two eyewitnesses identified Matthews as the man who shot the victim. One was in her car, and saw the perpetrator run from the store, and identified Matthews from a photographic array. The other saw the perpetrator from his rearview mirror while he (witness) was being shot at, and trying to block the escape of the getaway car.

Five years after conviction, DNA testing on the mask matched with another individual, not Matthews. Matthews became the 14th death row convict who was exonerated by post-conviction DNA, lending truth to the observation of Justice Brennan that: “The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification” [US v. Wade 388 U.S. 218 (1967)].

Brady Violations

The Philippine DOJ in the Mancao extradition presented to its US counterparts, the report of Dr. Raquel Fortun which stated that:

“Fragments of charred bones and other objects were obtained. “..the following conclusions were arrived at:
  1. The remains recovered from the scene are of human origin.
  2. At least two adult individuals are present.
  3. These two individuals are positively identified as MR. SALVADOR “BUBBY” DACER and MR. EMMANUEL CORBITO.”
The Philippine DOJ (PDOJ) conveniently omitted presenting evidence which stated that the bones tested negative for human DNA.

The PDOJ also failed to apprise the US DOJ of the decision of the Supreme Court in the case of Allado, which held that:
“A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust.”

"To allege then that the body of Van Twest was completely burned to ashes in an open field with the use merely of tires and gasoline is a tale too tall to gulp” (People v. Allado G.R. No. 113630 May 5, 1994).
In Allado, the Philippine Supreme Court ruled that there was absence of probable cause, and issued a writ of prohibition on the trial court.

Brady (v. Maryland) and its progeny make it the duty of the prosecution to disclose exculpatory material to the defense. The suppression of DNA evidence, or the withholding of jurisprudence favorable to the defense, singly, constitutes a Brady violation; said violation renders the prosecutor susceptible to disciplinary action for prosecutorial misconduct [US v. Byron Mitchell 145 F.3d 572 (3rd Cir. 1998)].

There is no Brady violation here, because the US DOJ gave the defense all the material it had in its possession [In the Matter of the Extradition of Michael John Drayer 190 F.3d 410 (6th Cir. 1999)]. The Philippine DOJ is off the hook on a technicality, because it did not plead before the US Courts. But there is, at least, in this case, diplomatic discourtesy; for the Philippine DOJ has exposed the US DOJ to the embarrassing situation of being confronted with evidence and jurisprudence suppressed by its side (US and Philippine DOJ). The Philippine lawyers are also susceptible to disciplinary action for violating the provisions of the Code of Professional Ethics of the Philippines, which provides as follows:
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.
The Court was misled by the submission of Dr. Fortun’s report which positively identified the remains as those of Dacer and Corbito. That identification was proven incorrect by the DNA report, stating that the bones tested negative for human DNA.

The Code of Professional Responsibility also provides that:
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.
This was violated by the failure of the PDOJ to apprise the US DOJ and the defense, of the Philippine Supreme Court’s decision in the case of Allado.

Philippine DOJ’s lack of candor in previous cases.

The PDOJ has been less than candid, if not, in fact, misleading in two previous extradition requests.

US v. Valentin Linson

In the case of US v. Valentin Linson (88 F.Supp.2d 1123) the PDOJ did not present to the US DOJ the recantation affidavits of the witnesses who implicated Linson in the alleged crime. Those affidavits were sworn to before the very same prosecutor trying the case. The Court was moved to observe the lame excuses of the PDOJ as follows:
At the December 21, 1999 hearing the Philippines did not proffer any evidence to the Court challenging the authenticity of the recantations. Instead, the Philippines offered explanations showing why they could not proffer the recantation evidence. First, their state prosecutor who witnessed the recantations had no telephone and could not be reached. Second, the Senior prosecutor, Mr. Barrios stated that the recantations were never forwarded to him. US v. Valentin Linson 88 F.Supp.2d 1123, District Court of Guam.
The Court also diplomatically pointed to the fact that the PDOJ fabricated evidence, by forging a witness’ signature:
Third, the Philippine Government presented an affidavit in which Roberto Calingasan implicated Linson stating “I saw him (Valentin Linson) shoot Bien, the policeman once.” However, defendant has supplied the Court with an affidavit signed by Calingasan in which he denies he signed such statement for the NBI. In the affidavit presented by the defendant Calingasan states that “I did not give NBI a statement … what was written in the statement was not true” and “I did not sign a statement at NBI.” This second statement is signed in a cursive style signature whereas the first one provided by the Philippines only had Calingasan’s name printed in block letters on the signature space.
In the Matter of the Extradition of Roger Laurence Strunk (293 F. SUPP 2D 1117)

In the case of Roger Laurence Strunk (husband of Nida Blanca), the PDOJ made selective presentations of evidence. It presented evidence from Elena De La Paz, the housemate of the accused (husband) and the victim (wife), and personal assistant of the victim, to prove motive on the part of the accused (page 12). But the PDOJ did not submit Elena’s testimony, that the accused was in the house, the entire evening that the murder occurred in a neighboring city (page 14).

The PDOJ anchored its finding of probable cause on the confession of Medel, who stated that he was hired by Strunk to commit the crime. Medel confessed, then later recanted his confession in open court, alleging it had been obtained through coercion and torture (page 6).

Commenting on the credibility of Medel, the Court observed:
First, as is evident throughout most of the declarations in this case, the first statement is never good enough. There always seems to be a need to embellish what was initially said in order to make the case better (shades of the Mancao affidavits - Aquino talking of Viña's bungling the job, later, Aquino talking of "Tirahin si Bero"). This fact is not necessarily detrimental, but importantly, the embellishments contain significant inconsistencies (page 7).
The penchant to embellish the submitted evidence was further underscored by the observation that:
The court will not consider the belated evidence submitted by the Philippines filed November 3, 2003. This extradition proceeding is not some movable feast----never to be finished as long as the parties drip evidence into the undersigned, when they feel moved to do so, or after the undersigned makes a comment on the submitted evidence at hearing or in writing.
The Court further observed that Medel was paid for his confession. “Payment to a defendant to confess his and others participation in a murder will cast doubt on the validity of the statement” (page 8).

The inconsistencies moved the Court to state:
“…. the evidence submitted by the Philippines concerning Strunk's participation in the murder of Blanca is so inconsistent and conflicting that it provides little competent evidence to support the conclusion that Strunk hired Medel to murder Blanca. “… the competent, admissible evidence submitted by Strunk obliterates the case presented by the Philippines resting on the Medel confession.”
The Court concluded by stating that:
US Attorney Ken Melikian “did his customary, professional presentation of evidence, and his customary, informative legal briefing. However, as the decision makes clear, the evidence given to Mr. Melikian was not competent. Good as he is, Mr. Melikian could not perform legal alchemy.”
It may be, that Dacer is dead, and justice must be done for him. But one does not achieve justice for the victim by doing an injustice to people who are presumed innocent; that works an injustice to the system – a typical result in the Philippine system.

It is true, that Philippine jurisprudence states that flight may indicate guilt. But flight, as exemplified by Linson and Strunk may have been motivated by fear – fear that the system is not fair, and would be used as a tool for persecution.