Prosecutor: Not enough evidence to convict Garcia


Posted at Jan 10 2011 07:02 PM | Updated as of Jan 11 2011 07:43 AM

MANILA, Philippines - A government prosecutor claimed on Monday that the prosecution does not have enough evidence to convict retired Major Gen. Carlos F. Garcia of plunder, which is why the Office of the Ombudsman accepted the plea bargain offer of the accused.

Assistant special prosecutor Joseph Capistrano told the Sandiganbayan Second Division there was "a very big risk” that the prosecution could no longer present evidence which would prove beyond reasonable doubt that the former military comptroller was guilty of plunder.

“We were not able to find any supplier or contractor to substantiate allegations of covert acts by the accused (in amassing ill-gotten wealth),” Capistrano told the anti-graft court.

“The evidence had weakened. We thought we had to reevaluate. It (bail) was one of the options. We needed to avail of all possible remedies to protect the interest of the people,” he added.
Capistrano was asked to defend the Ombudsman’s move in light of the challenge posed by the Office of the Solicitor General on the validity, propriety and legality of the Garcia plea bargain.
Under the deal, Garcia was allowed to walk on a plunder charge by pleading guilty to lesser offenses of direct bribery and violation of paragraph 4(b) of the Anti-Money Laundering Act or facilitating money laundering in exchange for returning P135 million worth of assets including bank deposits, motor vehicles, company shares and real estate out of the P303 million that he supposedly amassed.
The agreement also drops his wife Clarita and children Ian Carl, Juan Paulo and Timothy Mark as co-defendants in the plunder and money laundering cases.
Constantino de Jesus, counsel for the accused former military official, said his client knew of the prosecution’s doubts about the strength of its evidence and had considered taking his chances on seeing the conclusion of the trial.
“We wanted to pursue the case… to go through with the trial, but Gen. Garcia’s wife and children were already arrested. They were detained in 4 separate jails. They could not see each other. Our overwhelming consideration (after that) was to secure the release of the family,” the defense lawyer said.
De Jesus alleged that Garcia’s wife and children have since been released from detention but are still under restriction.
He argued that the OSG has no basis to question the deal because the government is actually getting the best bargain possible under the circumstances.
“They [prosecutors] have evidence only for the denial of bail. All they had were evidence of possession [of unexplained wealth] but that is not the gravamen required of the (plunder) case. The gravamen is evidence of acquisition,” De Jesus stressed.
Assistant Solicitor General Amparo Cabotaje-Tang argued that the Garcia deal was irregular because the Armed Forces of the Philippines, being the offended party in the case, was never consulted as required by law.
She said the deal was entered into after the prosecution had already terminated its presentation and despite denial of Garcia’s petition for bail wherein the Sandiganbayan held that evidence against him was "strong."
Plea bargain not yet approved

In its 34-page Omnibus Motion for Intervention, the OSG said the plea bargain was approved by the Sandiganbayan Second Division in its resolution dated May 4, 2010.
But Presiding Justice and division chairman Edilberto Sandoval and Associate Justices Teresita Diaz-Baldos and Samuel R. Martires said the deal has not been approved.
They said the May 4, 2010 resolution merely directed parties to comply with the terms of the agreement.
Tang countered that from the OSG’s viewpoint, that deal has been "virtually approved" judging by the "subsequent actions" of the Ombudsman and the defense.
These, she said, include the fact that the turnover of Garcia’s assets to the government is already nearing completion; the defendant has been allowed to plead guilty on lesser offenses; and, he was subsequently released on bail.
Sandoval, however, pointed out that the graft court was left with no choice but to give the Joint Motion for Approval of Plea Bargaining Agreement due course.
“When an accused pleads guilty to a lesser offense, that offense becomes effectively the indictment (against the accused). The right to bail is rooted in a provision of the Constitution,” the magistrate said.
Baldos, for her part, said the court’s pronouncement that the strength of government’s evidence "militates against the grant of bail" was still not final as the defendant is still seeking reconsideration of the said ruling.
“Denial of bail does not mean automatic conviction, in the same way that if we grant bail, it does not mean that the accused will be acquitted,” Martires added. 
On the OSG’s assertion that the there was unusual haste in the grant of Garcia’s bail request on the same day after pleading guilty to lesser offenses, Sandoval explained: “The three-day rule applies only to allow the adverse party to comment but the motion shows no objection from the prosecution. Where a motion is not litigated, the three-day notice may be dispensed with.”
He noted that it is only the prosecution who can object if an accused offers to plead guilty to a lesser offense.
“If a defendant wants to plead guilty, the judge would order the movant to submit it in writing so the court can consider it and determine if it will have to be approved. The court cannot stop him,” Sandoval noted.
Martires clarified that courts can only rule on issues based on available evidence submitted before it.
“Is it not the duty of the court to protect every person from harm, including the accused? Let us render justice where justice is due. Let us not distort facts,” he reminded the parties.
Ombudsman prosecutors and Garcia’s lawyer were given 15 days each to submit their opposition to the OSG motion for intervention while the OSG was given the same period from receipt of the oppositions to make a reply.
The promulgation which was earlier set on January 17, 2011 was necessarily canceled.