Judge: Driver out of Subic rape case

By Bebot Sison Jr. - The Philippine Star

OLONGAPO CITY — Regional Trial Court Judge Renato Dilag has denied a motion filed by the prosecution to reconsider the inclusion of a Filipino driver as among the accused in the controversial rape case involving four US Marines.

Dilag, who presides over the case, reiterated in an order yesterday that the court found "no probable cause to indict Timoteo Soriano Jr. as co-conspirator" in the rape allegedly committed last Nov. 1 at the Subic Bay Freeport Zone in Zambales.

Soriano, who drove the van where the crime allegedly took place, was indicted along with US servicemen Daniel Smith, Chad Carpentier, Dominic Duplantis and Keith Silkwood by City Prosecutor Prudencio Jalandoni, but Dilag had discharged the driver from the case. This prompted the prosecution to file a motion for reconsideration.

However, Dilag said the prosecution’s motion "must fail."

He explained that Jalandoni’s argument that Soriano must be included as co-conspirator because he did not file a motion for reconsideration and that the prosecution’s resolution has already become final and executory "lacks legal leg to stand on."

He added that the court, in the exercise of its constitutional mandate to determine probable cause, "is not circumscribed by the non-filing by the accused of a motion for reconsideration of the (prosecution’s) resolution finding probable cause to hold him for trial."

In the same order, Dilag also denied a motion for reconsideration filed by Smith to quash the warrant of arrest issued against him.

Smith’s counsel earlier argued that the court should not find probable cause against Smith because the judge has not personally examined the complainant and her witnesses.

Dilag, however, said that he was "not precluded from relying on the evidence earlier gathered by responsible officers.

"The extent of the reliance depends on the circumstances of each case and is subject to the judge’s sound discretion," he also said.

He added that the setting aside of the warrant of arrest issued against Smith was rendered "moot and academic" by his Jan. 26 order recalling the warrants, which were returned unserved by the Department of Justice (DOJ).

Dilag also told The STAR that the recall of the warrant of arrest could be a "confidence-boosting arrangement."

"That’s my judgment call," Dilag described the recall. "I could see that even if the warrant of arrest is out, the accused may not surface. Even if I set the arraignment, they may not appear because the US Embassy has rejected the warrant and it was not served by the DOJ, so the trial could not also start," he said.

"I have to think of a way by which the accused could be given confidence to come out and submit themselves to the jurisdiction of the court," he added.

Dilag said the trial could start once the DOJ has completed its review of the prosecution’s resolution because the lawyers of the accused have manifested in open court that they are willing to produce the accused whenever required by the court.

He said he is confident that the DOJ will come out with its findings even before the 60-day review period lapses.

"Baka madaliin nila (DOJ) ang review," he added.

The judge also expressed confidence that the accused US servicemen will appear in court when required.

"Definitely, they will appear during the arraignment because their presence there is indispensable," Dilag said.

In yesterday’s hearing, the prosecution and defense also agreed to give the lawyers of the accused 10 days to file their comment or opposition to the omnibus motion filed by Jalandoni for the court to reconsider its Jan. 26 order and schedule the arraignment of Smith, as well as to set the case for continuous and reverse trial.

In filing the omnibus motion, the prosecution said the court has committed an error when it recalled the warrant of arrest and reiterated that the four accused US Marines should be under the custody of Philippine authorities for them to be considered as having submitted themselves to the jurisdiction of the court.

The prosecution, in the same motion, also sought the "immediate arrest and arraignment" of Smith, who has not filed a motion for review by the DOJ of the prosecution’s resolution.

According to the prosecution, Smith has, in effect, admitted to the allegations against him by not filing a counter-affidavit and that he admitted during an interrogation conducted by the US Naval Criminal Investigative Service that he had sex with the complainant inside the van.