Yet, government prosecutors refuse to drop the charges against her for two reasons (1) the prosecution is done presenting their evidence and the recantations of testimony were made by those flip-flopping witnesses after they have already testified, and (2) it is not up to them to order the dismissal of the cases, it is up to the judge.
The prosecutors are wrong on both points.
Prosecutors do not stop working after they have rested their case. Otherwise, why stick around for the presentation of defense evidence? It is not just the prosecutor’s job to refute the defense, it is also his job to preserve the prosecution’s case and make sure it hurdles the test of reasonable doubt. That doubt can accrue at any point in the proceedings as new facts and circumstances intervene.
In dispensing that duty, a prosecutor must act with all candor towards the Court, keeping in mind that it is NOT the job of the prosecutor to ensure conviction. The Supreme Court said it is the duty of the prosecutor to ensure that justice is served—either by conviction or by avoidance of wrongful conviction.
Is it anomalous for a prosecutor to be the one to move for dismissal? Absolutely not.
I have served both as defense counsel and as private prosecutor under the direct supervision of the public prosecutor in many criminal cases. It’s a very common practice to broker a settlement of the civil aspect of the case—meaning for the accused to just agree to pay civil damages to the private offended party right away. In exchange, that private party loses interest in the case, leaving the plaintiff (“People of the Philippines”) with no witnesses.
As a private prosecutor, I would intimate to the public prosecutor, “Pañero, wala na tayong testigo, alanganin na tayong makakuha ng conviction.” No prosecutor is going to insist on jousting with a windmill like Don Cervantes in the Man of La Mancha. He would manifest to the judge, “Your Honor, we’re no longer confident of being able to establish the guilt of the accused beyond reasonable doubt now, since the parties have arrived at a settlement. So to spare the State of unnecessary expenditure, may we move for dismissal…” Some timid prosecutors would, of course, prefer to prod the defense to move for dismissal and they would raise no objection. Same thing.
I admire a prosecutor who does that, take the initiative in terminating a pointless prosecution. And no prosecutor would land in trouble for doing that, because that is PRECISELY how the Supreme Court says a prosecutor must act.
In Senator de Lima’s case, the Government is not seeking damages so there is no significant civil aspect to mind. That is mostly what the prosecutors must mean when they say this case is not capable of settlement. But the case is not impervious to reasonable doubt, either. In fact, the WHOLE COUNTRY now doubts the case against her, as if the case wasn’t shot full of holes of doubt to begin with.
The main witnesses are all drug convicts actually serving time in prison. These bastards will sell their own mothers and testify to ANYTHING to score points towards pardon or parole.
Those that recanted their testimonies did so in spectacular measure. It’s not like they were just trading their testimonies for the privilege of “pleading the Fifth”—meaning sealing their lips from saying ANYTHING.
No, they all said everything they said was the OPPOSITE of their oath to “tell the truth, the whole truth and nothing but the truth.” On the contrary, they said they cut and stitched their testimony entirely out of whole cloth. Everything they said was a lie—not partially, EVERYTHING!
Beyond that, some of them even said not only did they lie, they were TOLD to lie, obviously in consideration of promises that never materialized, including the promise that they would be released as charges against them would be dropped. No one explained to these poor simpletons that they are CONVICTS. Dropping charges against them? That ship has long sailed. Granting immunity from prosecution—prosecution FOR WHAT? Rendering false testimony? Isn’t that an admission right there that they were asked to break the law, for which they are being promised immunity from prosecution so long as they lie first and hope their lie sticks well enough to nail de Lima? It’s like being told to jump out of the airplane, we’ll toss the parachute after you later.
Somebody did a really good number on these witnesses, even after they have recanted. They must have been told that their testimonies are now part of the record. However, barring the possibility of death sealing the lips of the witness forever, those testimonies are not safe. The judge has obviously admitted them in evidence. But they could still lose their probative value in the face of so public a disclaimer. Unless, like I said, if death should seal their lips.
So when other witnesses started dropping like flies inside the penitentiary, the ones still alive stampeded to their lawyers to join the exodus of repentant false witnesses just in time before “COVID-19” got them too.
As things stand now, not only is there reasonable doubt in the mind of the reasonably prudent—there is now COMPELLING DOUBT in the mind of the most ordinary person in the Philippines.
Now here you are, a prosecutor—a product of some of the finest law schools in the country, grizzled veteran of many years of prosecutorial work, went to advanced post-graduate foreign schooling—in other words, in every way an EXPERT of the law.
If Juan de la Cruz with his Grade 6 education can discern doubt in all these circumstances, how can you NOT? What extraordinary power of clairvoyance are you gifted with to know with any certainty that any reasonable judge could witness everything that has happened in the last five years--but especially in the last six months—and say, “Ah. yes, this woman is clearly the devil incarnate! GUILTY!!!”
No, it’s not “up to the judge” to dismiss the cases against de Lima.
It’s only up to the judge to APPROVE A MOTION TO DISMISS--and it is up to the truly courageous, noble, intelligent and sublime prosecutor to MAKE that motion.
Justice can sometimes be this simple: it’s nothing but responsiveness to common sense.*
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