U.S. seeks custody of convicted Marine during appeal
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  1. #1

    Exclamation U.S. seeks custody of convicted Marine during appeal

    December 05, 2006

    U.S. seeks custody of convicted Marine during appeal

    The Associated Press

    MANILA, Philippines — The U.S. government on Tuesday sought custody of a U.S. Marine convicted of rape in the Philippines while he appeals his conviction and 40-year sentence, but Manila said a judge will have to decide.

    The legal battle over custody and interpretations of a joint military pact that allows U.S. troops to train in the Southeast Asian nation loomed a day after a 23-year-old woman won a landmark rape case against Lance Cpl. Daniel Smith, 21, from St. Louis.

    A visibly shaken Smith, who had been in U.S. Embassy custody, spent his first night in a Manila jail after being whisked away from the courtroom.

    The Philippine Foreign Affairs Department said it received a note from the U.S. Embassy “reaffirming the right of the United States military authorities to exercise custody of any United States personnel over whom the Philippines is to exercise jurisdiction until completion of all judicial proceedings.”

    But the department added, “Mr. Smith may be transferred to the custody of United States authorities only upon the authority of the court.”

    Zosimo Paredes, head of the Philippines’ Visiting Forces Agreement Commission, said the 1998 agreement is clear that after all appeals are exhausted, Smith would be detained in the Philippines.

    But it was less clear whether he should have been handed over to Philippine police while his appeal is pending.

    A Philippine police official said it appeared there had been a misunderstanding after the judge ruled that he should be temporarily held in the Makati jail.


    A scuffle briefly broke out in the courtroom Monday between U.S. Embassy security personnel and local police. After some pushing and shoving, Philippine police took hold of Smith and led him away in handcuffs.

    One of Smith’s lawyers, Benjamin Formoso, said the Marine “was in shock. He was crying yesterday when he talked to his parents.”

    He said he already filed an appeal and another petition may be filed before the Supreme Court to seek U.S. custody of Smith — although he admitted diplomatic channels may be a faster way to solve the thorny issue.

    Smith was confined in a room separate from other prisoners for security reasons, said warden Superintendent Delvic Oriero.

    “He’s still tense, he’s hanging on,” said Enrico Uyehara, a lawyer for one of the acquitted Marines who visited Smith. He said Smith told him he had trouble sleeping.

    The case has tested the joint military pact that paved the way for U.S. counterterrorism training, which was credited with helping local forces make gains against Muslim extremists.

    Left-wing groups have staged regular protests outside the U.S. Embassy, claiming the American servicemen were getting special treatment that undercut the country’s sovereignty.

    The alleged rape victim, known publicly by her pseudonym “Nicole,” accused Smith of sexually assaulting her while she was drunk on Nov. 1 last year, with Staff Sgt. Chad Carpentier, Lance Cpl. Keith Silkwood and Lance Cpl. Dominic Duplantis allegedly cheering him on.

    Smith testified that the sex was consensual. The three other Marines were acquitted Monday.

    Will the Philippines rape case affect your liberty?

    Ellie


  2. #2
    Wednesday, December 06, 2006

    We’ll keep custody of Smith—US

    By Francis Earl A. Cueto and Sam Mediavilla, Reporters

    The issue of custody over US Marines Lance Cpl. Daniel Smith fueled another round of calls Tuesday for a reversal of the Visiting Forces Agreement (VFA).

    As Nicole, Smith’s 23-year-old rape victim, joined militant groups in pushing for the American’s continued detention at the Makati City jail, VFA panel officials pinned blame on senators who had ratified the treaty between the Philippines and the United States.

    Government officials said they could not insist on treating Smith as an ordinary convict as the VFA allows the US to seek custody of servicemen charged with criminal acts committed while covered by the treaty.

    The United States sent a note verbale to the Department of Foreign Affairs reaffirming its right over the custody of Smith. The note was coursed through the United States Embassy in Manila.

    “[The US] reaffirms the right of the US military authorities to exercise custody on any United States personnel over whom the Philippines is to exercise jurisdiction until the completion of all judicial proceedings, notably in the ongoing legal case of Lance Corporal Daniel Smith,” the DFA quoted the note verbale as stating.

    In a separate interview with The Manila Times, US Embassy Spokesman Matthew Lussenhop said the US government would coordinate with the Departments of Foreign Affairs and of Justice for the immediate return of Smith.

    “We are working with Philippine authorities to expeditiously return him to US custody,” he said.

    Lussenhop said, however, that diplomatic relations between the Philippines and the US “has not been strained” by the conviction of Smith.

    Special treatment

    At a press conference Nicole said she pitied her 21-year-old rapist, who faces 40 years in jail.

    “He’s so young. But he broke the law and must be punished,” Nicole said.

    The victorious rape victim is looking forward to moving on with her life, preferably abroad where she can have more privacy. But Nicole said she and her private lawyer, Evalyn Ursua, would remain vigilant and ensure that Smith’s conviction is upheld all the way to the Supreme Court.

    That vigilance, Nicole said, would start with monitoring of Smith’s detention at the Makati City jail, where he allegedly received special treatment, including visits outside of sanctioned hours.

    Smith is expected to stay at the MCJ for a couple of more days while waiting for the ruling of the Court of Appeal on the habeas corpus petition filed by his lawyers.

    No to revision

    Malacaņang rejected calls to revise the VFA. While on Monday it hailed the triumph of “impartial justice,” on Tuesday the Chief Presidential Legal Counsel criticized Judge Benjamin Pozon’s decision to order Smith’s detention in the Makati jail.

    Apostol stressed there is no need to amend the VFA because the conditions prescribed in the treaty were well defined and still functioning.

    “I don’t think it’s needed anymore. In the case of Smith due process was observed, its just unfortunate the judge ordered his detention in the Makati City Jail,” he said.

    Malacaņang also backed the earlier observation made by Secretary Zosimo Paredes, President Arroyo’s adviser on the Visiting Forces Agreement that custody of Smith should be left to the US authorities.

    Paredes in an interview on dzBB said: “Technically the presumption of innocence remains. Wala pang finality [There is no finality yet]. Remember that a decision of the lower court can be reversed by the Supreme Court. It will not come into play as far as custody is concerned. Whether there is presumption or not, custody remains with the [US].

    Paredes blamed the senators who ratified the US-RP military pact during the Estrada administration for some “bad provisions.”

    “It is not my job to point out bad provisions, but who ratified the VFA in the first place?” he asked in Filipino.
    --With Jefferson Antiporda and James Galvez

    Ellie


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