Dacers file final memorandum vs Lacson petition

By Ina Reformina, ABS-CBN News

Posted at Dec 23 2010 01:02 AM | Updated as of Dec 23 2010 09:28 AM

MANILA, Philippines - The Dacer family has filed a memorandum at the Court of Appeals (CA) in compliance with the appellate court's order for the submission of final memoranda by parties in the pending petition for certiorari and prohibition by fugitive Senator Panfilo Lacson at the Special 6th Division.

Lacson's petition seeks to annul the Regional Trial Court (RTC) of Manila's orders dated February 4 and July 23, 2010, finding probable cause to issue warrants of arrest against the senator and the dismissal of charges against him in connection with the murders of publicist Salvador "Bubby" Dacer and his driver, Emmanuel Corbito, in November 2000.  

In their memorandum dated December 21, 2010, the daughters of Dacer--Carina Dacer, Sabina Dacer-Reyes, Emily Dacer-Hungerford and Amparo Dacer-Henson--reiterated their position seeking a dismissal of Lacson's petition. They started off by saying: "If he is truly innocent, petitioner should bravely go to trial and prove his defense," quoting a Supreme Court decision in Boiser v. People.  

The Dacers alleged that Lacson, "a Senator of the Republic who, though sworn to uphold the laws of the land, has employed all sorts of delaying tactics to place himself beyond the reach of the law." 

The Dacer family assailed Lacson for having "done everything in his power to delay these proceedings and impede the orderly administration of justice." 

"To top it all off, Petitioner went into hiding to avoid arrest and detention," the memorandum said.  

The Dacers pointed out that in an effort to evade the case, the senator filed motions to inhibit the two presiding judges--Judge Myra Garcia-Fernandez and Judge Thelma Bunyi-Medina--assigned to the case, filed motions questioning the finding of probable cause by the Justice Department and asking for the recall of the warrants of arrest against him, and also filed petitions before the Supreme Court and the appellate court to "stall the investigation into his criminal participation and to hinder his prosecution."  

"Considering that the Supreme Court has repeatedly declared that 'the wicked flee, when no man pursueth, but the innocent are bold as a lion,' only one conclusion can be drawn from petitioner's actions. His flight, his maneuverings to delay trial - these are not the actions of an innocent man," the Dacers said. 

The case is ripe for decision by the CA after both parties file their final memoranda.

Dacer's grounds

The following are the Dacer's grounds for urging the court to deny Lacson's petition: 

1. Forum shopping. The Memorandum states: "Petitioner is deliberately forum-shopping, as he is asking the Honorable Court (Court of Appeals) and the Regional Trial Court of Manila to rule on the same or related causes and to grant the same or substantially the same reliefs." 

2. Neither certiorari nor prohibition lies to annul the trial court's finding of probable cause to warrant petitioner's arrest for the murders of Dacer and Corbito. Petitioner has plain, speedy and adequate remedies under the Rules of Criminal Procedure. 

3. The trial court did not gravely abuse its discretion in finding probable cause and issuing warrants of arrest against petitioner:  A. There exist facts and circumstances that would lead a reasonably discreet and prudent man to believe that petitioner committed murder. B. Mancao (Cezar) is a credible witness and his testimony is competent and credible proof of petitioner's participation as principal in the murders of Dacer and Corbito. 

4. The Department of Justice (DOJ) had not prejudged petitioner's guilt. 

ARGUMENTS

For ground 1: the Dacers noted that in spite of his pending motions for reconsideration before the trial court which denied his motion for reinvestigation and recall of the warrants of arrest, Lacson filed the present petition before the appellate court. The Memorandum claims that "same allegations and arguments" were raised by Lacson at the CA and the trial court.

For ground 2: the Memorandum noted that the disposition of criminal charges against Lacson lies with the trial court as held by the Supreme Court when it said "The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence." 

For ground 3: the Dacers noted that in finding probable cause, the trial court, at this stage of the proceeding, is "not yet tasked to review in detail the evidence submitted during preliminary investigation."

As to questions Lacson raised on the credibility of his former subordinate, Cezar Mancao, the Dacers said that previous affidavits issued by Mancao in June 2001 and March 2007 "did not mention any involvement on the part of petitioner in the Dacer-Corbito case" in order to protect himself and his family.

In support of this, the Dacers noted that the Supreme Court has held that failure to reveal at once the identity of the accused "does not necessarily affect, much less impair, the credibility of the witness... considering the risk to their lives and limbs."

The memorandum also said that the proper time to assess Mancao's credibility is at the trial stage "when the trial court can assess such testimony in the light of the demeanor, conduct and attitude of the witness." 

For ground 4: The memorandum said that Lacson's claims that the DOJ prejudged his guilt was anchored mainly on news reports and that he needed "to present more than hostile headlines to overcome the presumption."

The memorandum said Lacson failed to show proof that former Justice Secretaries Raul Gonzalez and Agnes Devanadera had exerted undue pressure on the DOJ panel which investigated the Dacer-Corbito murders.  

LACSON'S SIDE  

ON FINDING OF PROBABLE CAUSE: In his Motion for Reconsideration dated November 18, 2010 filed at the RTC Manila Branch 18, Lacson pointed out the ruling of the Supreme Court in Ligaya Santos and Robert Bunda v. Domingo Orda, Jr.: where the Court held that "probable cause demands more than suspicion" even as "it requires less than evidence that would justify conviction." 

"Hence, in determining probable cause, both prosecution and the trial court cannot look only at the evidence of the prosecution and disregard the evidence of the accused, on the mistaken notion that the comparative evaluation of the evidence from both sides and the resolution of issues of credibility can take place only at the trial of the case," Lacson's motion stated. 

"In determining probable cause, they must weigh the evidence presented by the prosecution and the accused against each other by determining their credibility and sufficiency. Only then can they determine where the weight of evidence lies or, stated differently, what is more likely: whether the accused committed the crime charged or he did not," the motion said.

DUMLAO HAS ALREADY EXONERATED HIM: Dumlao claimed before the trial court when he testified on January 28, 2010 that "he was pressured (with threats to his life) to link or implicate petitioner" to the murders and that he "had no personal knowledge of petitioner's involvement in the Dacer-Corbito case."   

ON MANCAO'S CREDIBILITY AND TESTIMONY: Lacson also assailed the credibility of Cezar Mancao as well as the credibility of Mancao's account and testimony. Lacson claimed that Mancao's most recent affidavit dated February 13, 2009, which implicated the senator to the twin killings, is "patently unreliable and incredible" and were inconsistent with his two earlier sworn statements (June 29, 2001 and March 1, 2007) which "did not mention any involvement on the part of petitioner in the Dacer-Corbito case."  

BIAS OF TRIAL COURT JUDGES: Lacson's camp claims the presiding judges whom they asked to inhibit committed "acts indicative of bias and partiality". Lacson's camp claims the judges refused to consider the senator's arguments but selectively accepted the prosecution's arguments and witness testimonies.   

LACSON FEARED THE PREVIOUS ADMINISTRATION WAS OUT TO PIN HIM DOWN BECAUSE OF HIS ANTI-ARROYO STANCE. This of course was manifested most evidently when the senator decided to go into hiding, thinking he could not be served justice under the previous administration.