‘Nicole’s’ ‘cross’ done in 40 minutes
By Volt Contreras, Tarra Quismundo
Inquirer
Inquirer
THE expected fireworks at the cross-examination of the Filipino complainant in the Subic rape case did not happen.
Days before she took the stand, “Nicole” was warned by her lawyers to “expect no kindness” from the defense. But yesterday, only one of the Filipino lawyers of the four accused US Marines conducted the cross-examination and was done in 40 minutes, provoking none of the tears and angry outbursts that earlier marked her testimony.
Speaking later with reporters, the lawyers of the three other American soldiers said they chose not to grill Nicole because she did not mention their respective clients anyway during her emotional, three-day direct examination.
Those who adopted the “no-cross” tactic were Francisco Rodrigo, counsel for S/Sgt Chad Carpentier; Jose Justiniano, for Lance Cpl. Keith Silkwood; and Enrico Uyehara, for Lance Cpl. Dominic Duplantis.
“The most eloquent cross-examination is no cross-examination,” Rodrigo said.
Makati Judge Benjamin Pozon adjourned the proceedings at 2:10 p.m.—the shortest hearing yet in the trial.
Justiniano told reporters that the defense panel’s tack was not necessarily a sign of overconfidence. “To win a case, you don’t really rely on cross-examination but on the strength of your own evidence,” he added.
Private prosecutor Evalyn Ursua expressed relief that Nicole’s “ordeal” was “brief” and the cross-examination was “surprisingly short.”
“They were not able to impeach Nicole, and that means her testimony was not destroyed,” Ursua said.
“And that’s very significant because they were not able to destroy even one point of her testimony. And when the defense fails to impeach a witness’ testimony, that means the court should accept [the testimony] as weighty,” she said.
Ursua said the prosecution had expected the defense, or at least the counsel of Lance Cpl. Daniel Smith, to grill Nicole intensely given her clear testimony on what the 21-year-old soldier had allegedly done to her.
“That was why we did not have any other witness today. We thought the cross-examination would spill over to next week ... Maybe they just could not get anything out of our client,” she said.
Credibility
Only Patricia Formoso, who assisted her father Benjamin in defending Smith, questioned Nicole, mainly to test her credibility as well as her memory of the night of Nov. 1, 2005, when the alleged rape occurred.
But Formoso tackled, not the alleged crime, but how Nicole purportedly got herself drunk at the Subic Bay Freeport’s Neptune Club, where she first met Smith on the dance floor.
The lawyer also brought up Nicole’s having at the time an American boyfriend named Brian Goodrich—also a US Marine based in Okinawa—and, at one point, asked her if she had harbored a “dream” of going to the United States.
“It’s not really a dream. I just want to live with my fiancé,” Nicole said.
Formoso also made her admit that she did not tell her boyfriend that two other US servicemen—Navy Petty Officer Christopher Mills and a Carlos Ocasio—were paying for her and her siblings’ lodgings when they all took a vacation in Subic.
(Nicole previously said that Mills and Ocasio—whom she described as family friends back in her native Zamboanga City—invited her and her two sisters to Subic, and that Mills gave them money to bet at a casino and also paid for their drinks at the Neptune.)
Formoso also asked Nicole to remember how many minutes passed between her consumption of the six different alcoholic drinks that made her “dizzy.”
‘Why would I bother?’
But Nicole said she would not know because she did not bother to count the minutes.
“Why would I bother? We were drinking and I didn’t care about the time,” she said in Filipino.
Formoso further probed: If Nicole really got that drunk on that night, would she remember collapsing on the floor? Did she need help to walk straight?
“I don’t know” was Nicole’s reply to both questions.
But Formoso was forced to withdraw certain questions upon the objections made by Ursua, with Judge Pozon upholding her.
In one question that Ursua succeeded in blocking, Formoso tried to establish that Nicole “went straight” to executing an affidavit on her alleged rape at Subic’s Intelligence and Investigation Office because she got “angry” with the female doctor who took her urine sample at the James Gordon Memorial Hospital in Olongapo City.
(By Nicole’s earlier account, that doctor sneered at her rape story and remarked that “maybe you liked it.” She also complained that the doctor attended to a pregnant woman first although Nicole, her sister and their IIO escort got to the hospital much earlier.)
Ursua argued that there was “no connection” between the two episodes—and Pozon agreed.
Formoso even asked Nicole what “language” her American boyfriend spoke.
The question not only caused Pozon himself to ask what was its relevance, but also drew chuckles from Nicole’s supporters in the gallery.
10 hours
“If it were my client who was pinned down, my cross-examination would have taken 10 hours. If it were my client, 30 minutes or an hour of cross-examination would not be enough,” Ursua said, pointing out that the defense did not even touch on Nicole’s testimony on what had happened inside the rented Starex van.
Testifying on direct examination, 22-year-old Nicole had identified Smith as the man who forced her out of the Neptune and raped her while she was dead drunk inside the moving van.
She had told the court that Smith kissed her on the lips and neck and caressed her chest even while she struggled.
While she had no memory of the actual intercourse, Nicole had said she confirmed the rape after she found her pants on in reverse when she regained consciousness on the pavement where the soldiers had allegedly dumped her, and when she felt pain in her genitals after the effects of alcohol had dissipated.
Because Nicole’s testimony remained intact despite the cross-examination, Ursua no longer conducted redirect examination.
Clarifications
It was Judge Pozon who made some clarifications with Nicole.
First, he asked why the complainant was weak at the time she tried to fight off Smith inside the van. (Nicole had testified that she repeatedly tried but failed to push Smith away as he pinned her down on the van’s seat with his weight.)
“I was already drunk at that time and my body was losing strength,” Nicole said.
Pozon then tried to see if the complainant remembered what happened between the time Smith was kissing and touching her inside the van, as she had testified, and the time she found herself with her pants down, front side back.
“I don’t know. All I know is that my pants were already on in reverse that time, ” said Nicole, referring to the time strangers found her at Subic’s Alava Pier, where the soldiers allegedly dumped her before dashing to their ship, the USS Essex, docked nearby.
The judge then asked Nicole about the voices she heard inside the van during Smith’s alleged assault: “Were you able to tell where the voices were coming from?”
Nicole: “No. I was not able to notice that because I was struggling.”
Pozon: “You said you heard music. Do you know where the music was coming from?”
Nicole: “I don’t know. All I know is I heard some music.”
‘In what manner?’
The judge then focused on the alleged sexual assault: “You said Smith touched your breasts [while in the van]. In what manner did Smith [do that]?” Pozon asked the complainant.
Nicole: “I don’t remember, sir.”
Next, Pozon asked if Nicole remembered the manner with which Smith, as she had alleged, forced kisses on her lips and neck while she struggled.
Nicole: “All I remember is that he kissed me.”
Pozon then asked Nicole about what she told the Neptune’s security guard when she returned to the bar to look for Smith after the alleged rape.
“When you told the guard that Smith did something bad to you, what is that ‘something bad’ you were referring to?” Pozon said.
Nicole: “Rape. I just could not tell the security guard at the time because I was ashamed. I am not proud to tell people that I was raped.”
Filipino driver
For their 21st witness, Ursua said, the prosecution will present next week Timoteo Soriano, the Filipino driver of the hired van.
Public prosecutor Elizabeth Berdal said that contrary to earlier reports, Soriano had not “actually gone into hiding.”
Soriano last figured prominently in the case during the preliminary investigation, when he submitted an affidavit recanting his original statement to the IIO and claiming he was only coerced by an investigator into mentioning “gang rape” in the first document.
Days before she took the stand, “Nicole” was warned by her lawyers to “expect no kindness” from the defense. But yesterday, only one of the Filipino lawyers of the four accused US Marines conducted the cross-examination and was done in 40 minutes, provoking none of the tears and angry outbursts that earlier marked her testimony.
Speaking later with reporters, the lawyers of the three other American soldiers said they chose not to grill Nicole because she did not mention their respective clients anyway during her emotional, three-day direct examination.
Those who adopted the “no-cross” tactic were Francisco Rodrigo, counsel for S/Sgt Chad Carpentier; Jose Justiniano, for Lance Cpl. Keith Silkwood; and Enrico Uyehara, for Lance Cpl. Dominic Duplantis.
“The most eloquent cross-examination is no cross-examination,” Rodrigo said.
Makati Judge Benjamin Pozon adjourned the proceedings at 2:10 p.m.—the shortest hearing yet in the trial.
Justiniano told reporters that the defense panel’s tack was not necessarily a sign of overconfidence. “To win a case, you don’t really rely on cross-examination but on the strength of your own evidence,” he added.
Private prosecutor Evalyn Ursua expressed relief that Nicole’s “ordeal” was “brief” and the cross-examination was “surprisingly short.”
“They were not able to impeach Nicole, and that means her testimony was not destroyed,” Ursua said.
“And that’s very significant because they were not able to destroy even one point of her testimony. And when the defense fails to impeach a witness’ testimony, that means the court should accept [the testimony] as weighty,” she said.
Ursua said the prosecution had expected the defense, or at least the counsel of Lance Cpl. Daniel Smith, to grill Nicole intensely given her clear testimony on what the 21-year-old soldier had allegedly done to her.
“That was why we did not have any other witness today. We thought the cross-examination would spill over to next week ... Maybe they just could not get anything out of our client,” she said.
Credibility
Only Patricia Formoso, who assisted her father Benjamin in defending Smith, questioned Nicole, mainly to test her credibility as well as her memory of the night of Nov. 1, 2005, when the alleged rape occurred.
But Formoso tackled, not the alleged crime, but how Nicole purportedly got herself drunk at the Subic Bay Freeport’s Neptune Club, where she first met Smith on the dance floor.
The lawyer also brought up Nicole’s having at the time an American boyfriend named Brian Goodrich—also a US Marine based in Okinawa—and, at one point, asked her if she had harbored a “dream” of going to the United States.
“It’s not really a dream. I just want to live with my fiancé,” Nicole said.
Formoso also made her admit that she did not tell her boyfriend that two other US servicemen—Navy Petty Officer Christopher Mills and a Carlos Ocasio—were paying for her and her siblings’ lodgings when they all took a vacation in Subic.
(Nicole previously said that Mills and Ocasio—whom she described as family friends back in her native Zamboanga City—invited her and her two sisters to Subic, and that Mills gave them money to bet at a casino and also paid for their drinks at the Neptune.)
Formoso also asked Nicole to remember how many minutes passed between her consumption of the six different alcoholic drinks that made her “dizzy.”
‘Why would I bother?’
But Nicole said she would not know because she did not bother to count the minutes.
“Why would I bother? We were drinking and I didn’t care about the time,” she said in Filipino.
Formoso further probed: If Nicole really got that drunk on that night, would she remember collapsing on the floor? Did she need help to walk straight?
“I don’t know” was Nicole’s reply to both questions.
But Formoso was forced to withdraw certain questions upon the objections made by Ursua, with Judge Pozon upholding her.
In one question that Ursua succeeded in blocking, Formoso tried to establish that Nicole “went straight” to executing an affidavit on her alleged rape at Subic’s Intelligence and Investigation Office because she got “angry” with the female doctor who took her urine sample at the James Gordon Memorial Hospital in Olongapo City.
(By Nicole’s earlier account, that doctor sneered at her rape story and remarked that “maybe you liked it.” She also complained that the doctor attended to a pregnant woman first although Nicole, her sister and their IIO escort got to the hospital much earlier.)
Ursua argued that there was “no connection” between the two episodes—and Pozon agreed.
Formoso even asked Nicole what “language” her American boyfriend spoke.
The question not only caused Pozon himself to ask what was its relevance, but also drew chuckles from Nicole’s supporters in the gallery.
10 hours
“If it were my client who was pinned down, my cross-examination would have taken 10 hours. If it were my client, 30 minutes or an hour of cross-examination would not be enough,” Ursua said, pointing out that the defense did not even touch on Nicole’s testimony on what had happened inside the rented Starex van.
Testifying on direct examination, 22-year-old Nicole had identified Smith as the man who forced her out of the Neptune and raped her while she was dead drunk inside the moving van.
She had told the court that Smith kissed her on the lips and neck and caressed her chest even while she struggled.
While she had no memory of the actual intercourse, Nicole had said she confirmed the rape after she found her pants on in reverse when she regained consciousness on the pavement where the soldiers had allegedly dumped her, and when she felt pain in her genitals after the effects of alcohol had dissipated.
Because Nicole’s testimony remained intact despite the cross-examination, Ursua no longer conducted redirect examination.
Clarifications
It was Judge Pozon who made some clarifications with Nicole.
First, he asked why the complainant was weak at the time she tried to fight off Smith inside the van. (Nicole had testified that she repeatedly tried but failed to push Smith away as he pinned her down on the van’s seat with his weight.)
“I was already drunk at that time and my body was losing strength,” Nicole said.
Pozon then tried to see if the complainant remembered what happened between the time Smith was kissing and touching her inside the van, as she had testified, and the time she found herself with her pants down, front side back.
“I don’t know. All I know is that my pants were already on in reverse that time, ” said Nicole, referring to the time strangers found her at Subic’s Alava Pier, where the soldiers allegedly dumped her before dashing to their ship, the USS Essex, docked nearby.
The judge then asked Nicole about the voices she heard inside the van during Smith’s alleged assault: “Were you able to tell where the voices were coming from?”
Nicole: “No. I was not able to notice that because I was struggling.”
Pozon: “You said you heard music. Do you know where the music was coming from?”
Nicole: “I don’t know. All I know is I heard some music.”
‘In what manner?’
The judge then focused on the alleged sexual assault: “You said Smith touched your breasts [while in the van]. In what manner did Smith [do that]?” Pozon asked the complainant.
Nicole: “I don’t remember, sir.”
Next, Pozon asked if Nicole remembered the manner with which Smith, as she had alleged, forced kisses on her lips and neck while she struggled.
Nicole: “All I remember is that he kissed me.”
Pozon then asked Nicole about what she told the Neptune’s security guard when she returned to the bar to look for Smith after the alleged rape.
“When you told the guard that Smith did something bad to you, what is that ‘something bad’ you were referring to?” Pozon said.
Nicole: “Rape. I just could not tell the security guard at the time because I was ashamed. I am not proud to tell people that I was raped.”
Filipino driver
For their 21st witness, Ursua said, the prosecution will present next week Timoteo Soriano, the Filipino driver of the hired van.
Public prosecutor Elizabeth Berdal said that contrary to earlier reports, Soriano had not “actually gone into hiding.”
Soriano last figured prominently in the case during the preliminary investigation, when he submitted an affidavit recanting his original statement to the IIO and claiming he was only coerced by an investigator into mentioning “gang rape” in the first document.
posted by OlongapoCity Zambales at
6:36 AM
0 Comments:
Post a Comment
<< Home