Inadmissible? Questions raised over DNA analysis results in Degamo slay

MANILA — After the lawyer of the family of slain Negros Oriental Governor Roel Degamo revealed Tuesday that the DNA samples of four suspects matched with those taken from the crime scene and the getaway vehicle, lawyers of the accused, including the alleged mastermind, raised various questions regarding the DNA test.

First: how were the DNA samples taken?

Ferdinand Topacio, Jr., lawyer of suspended Rep. Arnolfo Teves, Jr., had earlier expressed fears that blood was extracted from the accused against their will supposedly to be “used to further frame up the witnesses and Cong. Teves.”

But Levito Baligod, lawyer of the Degamo family, told ANC Rundown Wednesday that the National Bureau of Investigation (NBI) relied on buccal swabs of the suspects.

“Upon their reception to the NBI custodial facility, buccal swabs were extracted or taken from all these suspects, the 10 shooters,” he said.

These were then compared with DNA samples taken by NBI investigators from the crime scene in the Degamo compound in Pamplona, Negros Oriental, where the March 4 killing happened, and from the getaway vehicle that the alleged shooters used.

These DNA samples were supposedly from blood droplets allegedly recovered from the crime scene, and from certain items left in the vehicle, such as water and beverage bottles.

“Positive DNA matched were found in the 4 shooters,” Baligod said, confirming the identities of:

• Jhudiel Rivero alias Osmundo Rivero
• Winrich Isturis
• Eulogio Gonyon, Jr.
• Rogelio Antipolo, Jr.

• DNA of 4 Degamo killing suspects match blood taken from crime scene

But the suspects' lawyers were quick to raise that Antipolo and Rivero were not wounded.

“[W]e have to point out that Rogelio Antipolo, Jr. and Jhudiel Rivero when arrested on March 4 and March 5 respectively, suffer[ed] no wound and they were arrested in places very far away from Pamplona, Negros Oriental. It is plain therefore that there is no connection between the alleged bloodstains found in the Degamo compound and the alleged get-away vehicle with those blood samples taken under duress and intimidation from Mr. Rivero and Antipolo,” lawyers Florian Banabana and John Harold Montalbo from the Baclig & Associates law firm said in a statement.

Rivero’s former lawyer, Danny Villanueva, on Wednesday, also claimed that none of his clients were wounded during their arrest.

“As per the Information, along with the attached documents, filed by the DOJ (Department of Justice) and the Honorable Prosecutors with the Court, our clients' medical records would show that there were no gunshot wounds sustained by our clients at the time of their illegal arrest. Otherwise, our clients would have been first sent to the hospital before transferring them to the NBI Detention Center in Manila,” Villanueva said.

“Hence, such blood purportedly attributed to our clients and allegedly found in the supposed crime scene and vehicles are extremely suspicious, if not highly reprehensible,” he added.

Villanueva said he stopped representing some of the accused two weeks ago due to health and security reasons.

But Baligod insisted that two of the accused were wounded during the Degamo slay.

“Osmundo or Jhudiel Rivero sustained a gunshot at his back, buttocks. And in fact, that is the reason why he had to approach the policemen conducting checkpoints because he can no longer evade, he cannot sustain the evasive moves that the others undertook and he can hardly walk at that time,” he said.

“And second, I think Isturis also sustained a gunshot wound in the crime scene. I think during the trial, they can refute that and also we can prove our claim,” he continued.

A bigger question raised by the lawyers of the accused is the supposed lack of consent when the samples were taken.

“What is sinister about this is the undeniable fact that the DNA/Blood sample taken from our clients allegedly used in the matching test was taken from our clients against their will, without the knowledge of the lawyers, and without prior approval from the court,” Banabana and Montalbo said.

“Otherwise put, the taking of DNA/blood sample from the accused as well as the alleged testing thereof were done under the suspicious shroud of secrecy and were made at least three (3) months after the alleged commission of the crime. Hence, the alleged DNA/Blood matching test result was tainted and, hence, not credible. Most importantly, the same is considered as fruit of poisonous tree, hence, inadmissible in any proceedings,” they added.

Baligod said the DNA samples were lawfully taken.

“The taking of the buccal swabs does not need a court order nor the consent of a person. Unlike in handwriting, when the question is handwriting, there is a certain operation of the mind and that is what is prohibited by our rules. But the taking, the extraction of the DNA samples is not prohibited,” he explained.

Justice Secretary Jesus Crispin Remulla declined to comment on the issues surrounding the DNA samples, but said he thinks it is “not necessary” to secure a court order or a warrant before samples could be taken.

“I cannot answer that. That’s the NBI’s problem. But that itself has to be a court matter already, later on,” he said about the DNA issue.

He noted that once the accused agreed to have their DNA samples taken with the assistance of lawyers from the Public Attorney’s Office who previously counseled them, he said nothing could be done to change it even if they later recanted their claims.

“Done deal na yun, with counsel na dati yun eh,” Remulla said.

• Remulla files complaint vs lawyer with IBP; lawyer cries ‘harassment’

The Supreme Court has ruled in a number of cases that obtaining DNA samples from an accused in a criminal case or from a respondent in a paternity case does not violate the right against self-incrimination.

“This privilege applies only to evidence that is ‘communicative’ in essence taken under duress. The Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material,” it said in the 2005 case of Herrera vs. Alba, a paternity case which involved DNA testing.

Aside from DNA, other evidence taken from the body that was admitted as evidence are the following: virus extracted from the body, substance emitted from the body as evidence for acts of lasciviousness, morphine forced out of the mouth, and the result of a pregnancy test.

“[T]he gist of the privilege is the restriction on ‘testimonial compulsion’,” the high court said.