‘Lost evidence not enough for Webb acquittal’

MANILA, Philippines (UPDATED) - Lauro Vizconde's camp believes that the disappearance of what the defense calls potentially exculpatory evidence in the massacre case involving his family is not enough basis to acquit Hubert Webb, one of the principal suspects.

"With due respect to the Webb family, I'm sorry to say that this specimen was not utilized by both parties because the handling, safeguarding, and reliability of the specimen cannot be guaranteed," Public Attorney's Office chief Persida Acosta said on ANC's "The Rundown".

Acosta said the National Bureau of Investigation (NBI) did not have any facility then to preserve the specimen taken from Vizconde's daughter, Carmela.

An afterthought?

Calling it an "afterthought" of the defense panel, Acosta said she does not see why the issue on the semen specimen should even be brought up at this time when both parties then did not even mark it as evidence, when the medico-legal, Dr. Prospero Cabanayan, was asked to present it in court.

"The prosecution itself presented [Dr. Cabanayan] who was questioned by the defense and yet the defense did not bother to mark the evidence pertaining to the alleged slide. If they believed that the slide was reliable, genuine, authentic and the slide has been preserved, they should have marked it as evidence and had it preserved," Acosta noted.

Acosta, who together with her husband helped in the case prosecution, had served as a private prosecutor in the case in 1995. She is also related to the Vizcondes."This specimen was not formally offered as evidence, so we believe in the prosecution that the specimen is not necessary to prove the elements of the crime committed. The prosecution's evidence is replete with testimonial, documentary, and other evidence. Under the Revised Penal Code, the presence of semen or spermatozoa is not an element of the crime," Acosta said.

Due Process

However, lawyer Zenaida Ongkiko Acorda said the defense team asked for a DNA analysis even before Paranaque Regional Trial Court Judge Amelita Tolento issued the guilty verdict in 2000. But, she added, Justice Tolentino had denied their request for DNA analysis, saying they had no capability at that time to ascertain the accuracy of DNA examinations.

"It was our position that our client is innocent because if he were not, he would not have volunteered for DNA examination which is 99% accurate, which means it would've conclusively established whether or not he was guilty," Acorda said.

In a unanimous decision in April, the full court approved principal accused Hubert Webb's request way back in 1997, during the ongoing trial then, to subject to DNA testing the semen specimen taken from Carmela.

"In the resolution issued by the Supreme Court granting the DNA examination, the SC stated it is affording our client the right to DNA examination as part of his constitutional right to due process," Acorda said.

'Acquittal is in order'

Acorda insists their client is entitled to an acquittal, as the missing evidence could have proven that Webb did not rape Carmela.

"It is our position he was denied his constitutional right to due process," Acorda said.

"It's just unfortunate that the state has lost [the] exculpatory evidence which would've proven his innocence. Whether it be willfull suppression or negligence, it is our position that the state lost exculpatory evidence and if the state lost it then the state must acquit," she said.

In the absence of a local jurisprudence, the defense is citing a case in the United States, Pile vs. Kansas.
The decision stated that the suppression of evidence by the prosecution is tantamount to a denial of the constitutional right to due process of the accused. It was even enough reason for the U.S. Supreme Court to order the immediate acquittal and release of the accused.

'Other pieces of evidence enough'

Acosta, however, said the defense panel is merely creating doubt on the supposed guilt of the accused.

"But I think there is no doubt because the accused here were positively identified by prosecution witnesses and the positive identification of prosecution witnesses prevailed," Acosta noted.

After much scrutiny, the Court of Appeals affirmed the Tolentino decision and subsequently upheld the charges against the accused, she said.

Acosta said the testimonial evidence, including statements made by Jessica Alfaro, Gerardo Biong's common-law wife, and the Webb family's laundry woman, led the trial court to establish Webb's role in the crime.

Acorda, however, noted that no less than the Vizconde camp had raised doubts on those same testimonies, including conflicting statements from the supposed star witness Jessica Alfaro.

"In the dissenting opinion of Justice [Renato Dacudao] of the Court of Appeals, he pointed out that [ the supposed star witness ] Jessica Alfaro contradicted herself. She is a self-perjured witness for the simple reason that she executed two affidavits, one saying she entered the Vizconde residence and therefore she was an eyewitness to the case, and another saying she did not enter the Vizconde residence and could not have been an eye witness," Acorda stressed.

There is also a testimony from the NBI's Artemio Sakagin, who said Alfaro was not an eye witness, she said.

"Justice [Lucenito] Tagle in his dissenting opinion [also] pointed out that there is very strong documentary evidence which would establish that Hubert Webb left the country on March 1991, came back here on October 1992 and there was no evidence he came back to the country in between," she said.

The murders happened on June 30, 1991.

This was supported by a certification issued by the US Immigration and Naturalization Service, she said. This was also confirmed by the country's Bureau of Immigration, she added.

Despite this, Webb and 6 others were ordered to serve a life in prison for the rape and murder of Carmela, sister Jennifer and mother Estrellita.

Promulgation expected soon

Nearly 19 years since the Vizconde massacre, the court is expected to hand a verdict on the case soon.

On Wednesday, however, the high court said it would proceed to resolve the case since the DNA is now gone.

On Thursday, Webb's lawyers filed an urgent motion for his acquittal before the Supreme Court on this ground, and the fact that he would have been denied due process.

"Let the Supreme Court decide based on evidence presented by both parties and let's respect the decision of the court," Acosta said.

Caroline Howard, ABS-CBN News