MANILA, Philippines - Saying she was bothered by her conscience and she wanted justice served, the woman who said she was raped in the back of a van in Subic by a US Marine has recanted her statement.
“Nicole” has accepted P100,000 in moral and exemplary damages from Lance Cpl. Daniel Smith and has left the country to stay in the United States “for good,” according to her former lawyer.
Her statement has been submitted by Smith’s lawyers to the Court of Appeals, where his appeal of his conviction awaits decision. The criminal aspect of the case can still be pursued.
Lawyer Evalyn Ursua, talking to reporters, confirmed that she had been fired by Nicole and that her former client was now in the US.
“Yesterday (March 16), at about 5:30 in the afternoon, Nicole’s mother personally handed me a letter addressed to me, purportedly from Nicole. The letter is brief. It reads that it serves as Nicole’s notice of termination of my services as her counsel in the criminal case against Daniel Smith and all other cases arising from or related to it which are pending before the Court of Appeals (CA) and the Supreme Court,” Ursua said.
She said Nicole expressed gratitude for the time and effort she dedicated to Smith’s prosecution which resulted in the latter’s conviction in December 2006 before the Makati City regional trial court (RTC).
Nicole’s mother told Ursua that her daughter “had left for the US last week for good,” adding that the decision to terminate her services as counsel stems from their “loss of confidence” in the country’s justice system.
The lawyer said she is respecting Nicole’s decision but expressed her desire to continue fighting for her “as a citizen who loves this country.”
Smith’s counsel, lawyer Jose Justiniano, in a two-page manifestation with the 12th division of the Court of Appeals that is hearing the appeal, said his client has satisfied the civil aspect of his conviction and has indemnified the victim.
The counsel submitted to the appellate court the receipt and release signed by the victim as proof of payment of damages.
Justiniano said Nicole also terminated the services of her lawyer on the same day she accepted the payment for damages from the camp of Smith before she reportedly flew to the US.
Justice Secretary Raul Gonzalez, for his part, said he believes Nicole’s decision to go to the US would not affect the conviction of Smith.
He denied that the government had a hand in facilitating Nicole’s visa to the US, recalling that the rape victim had asked the government’s help in securing a visa to Italy where her brother is reportedly staying.
“I did not help. Hands off. That’s a very taxing issue. That’s a sensitive case for a lot of people, especially the activists and the ultra-nationalists,” he said.
But Gonzalez commented that the decision of Nicole to go to the US showed that “her supposed path of hatred (against the US) expressed before was not very genuine.”
“If she just went to Italy maybe that would be more illustrative of her feelings against the US, but she did not go to Italy, she went to the US,” he said.
“You should remember that there was a time when she wanted to remove some meaty portions in her affidavit, indicating that she may have been in doubt of the so-called rape, in doubt about the truth that she was raped,” Gonzalez said.
No legal implication
The justice secretary reiterated that this latest development “will not disturb the decision (convicting Smith) anymore.”
“We don’t compromise a decision that is final,” he said.
The DOJ chief said that interpreting a Supreme Court ruling requiring Smith’s detention in a place actually controlled by Philippine authorities, not the US embassy, could be construed to mean that he may be detained at the Philippine embassy in Washington.
“Assuming there was a settlement, you can’t undo the judgment of the judge, that is not a newly discovered evidence. You can only reopen that for similar purpose if you have newly discovered evidence. We can only reopen that for similar purpose if we have newly discovered evidence,” Gonzalez explained.
Lawyer Romulo Macalintal agreed with the position of Gonzalez that Nicole’s flight to the US will not affect her case against Smith.
“As a matter of fact, she has nothing to lose but everything to gain. Remember the case is on appeal at the Court of Appeals. So either the appeal will be granted or denied by the court.”
“If it is denied, then Smith will go to RP jail and Nicole enjoys her trip to the US. If appeal is granted, Smith goes free and Nicole still enjoys her trip to the US. Let’s just wait for the CA decision,” he said.
Macalintal said Nicole can no longer withdraw her complaint against Smith, especially after the “people of the Philippines had already proven its case against Smith with her as its witness.”
Malacañang reacted by saying that nothing could be done if Nicole has lost interest in the case.
“If it’s true Nicole is in the States and no longer interested in the case, we should respect her decision,” Press Secretary Cerge Remonde said.
He, however, emphasized that Nicole’s departure should have no bearing on the case.
“At any rate, even if Nicole withdraws from the case, it’s already with the CA and the case would continue,” he said.
“So Nicole has nothing to lose but everything to gain. But the Palace has nothing to do with that.”
The fight goes on
Ursua, although disheartened, expressed optimism about the case.
“It should not affect the criminal case. It (rape) is a public crime. Only the civil aspect can be settled,” she told The STAR.
She said Nicole’s decision to terminate her as legal counsel no longer affects Smith’s criminal case at the CA, adding her services actually ended when Smith was found guilty of the charges and sentenced.
The case is on appeal and being handled by the Office of the Solicitor General (OSG).
Ursua explained that the personal decision of a complainant is immaterial in its prosecution when all the evidence needed to convict had already been presented.
“In fact, the trial court had already found Smith guilty. It is now up to the Court of Appeals to decide on the case on the basis of the evidence presented before the trial court,” she stressed.
“The Nicole that I and other lawyers represented is beyond the woman that Nicole and her family thought she is. Nicole is every Filipino woman who was and will be raped by American soldiers. Nicole can happen again,” Ursua said.
She said the fight against the Visiting Forces Agreement (VFA) and the presence of US soldiers in the country will continue even without Nicole.
At the Senate, Sen. Francis Pangilinan said Nicole’s decision to leave the country and settle in the United States “is an indictment of our justice system that is perceived to favor the wealthy and the powerful and is perceived to be biased against the ordinary folks like Nicole.”
“This is terribly disheartening news. We cannot blame Nicole and her family. The responsibility of ensuring that cases are disposed of fairly and swiftly lies with the state. Nicole did not fail us, our justice system did,” Pangilinan said.
He called on the Court of Appeals to resolve Smith’s case immediately even as calls mounted for the termination of the VFA.
“Nicole’s case represents the tens of thousands of cases languishing in our courts, in the Office of the Ombudsman, and our prosecutors’ offices nationwide. Many have given up on our justice system and we cannot blame them for doing so,” he said.
No comment
Meanwhile, the US embassy in Manila was mum on the granting of an immigrant visa to Nicole, saying the embassy does not comment on consular services sought from them.
“Thousands of Filipinos come to the embassy everyday seeking consular services. For privacy reasons, we don’t comment on who seeks services or what services sought,” US embassy spokesperson Rebecca Thompson said.
The immigrant visa granted to Nicole is seen as part of a deal in the case against Smith.
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