Cablegate: Verdicts in Alleged Rape Case; Ambassador Protests

VZCZCXRO5167
OO RUEHCHI RUEHDT RUEHHM
DE RUEHML #4880/01 3381033
ZNR UUUUU ZZH
O 041033Z DEC 06
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4148
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS IMMEDIATE
RUEHKO/AMEMBASSY TOKYO IMMEDIATE 2990
RUEHNH/AMCONSUL NAHA IMMEDIATE 0052
RHHMUNA/CDRUSPACOM HONOLULU HI IMMEDIATE
RUEKJCS/JOINT STAFF WASHINGTON DC IMMEDIATE
RHEHNSC/NSC WASHDC IMMEDIATE
RUEKJCS/SECDEF WASHDC IMMEDIATE

UNCLAS SECTION 01 OF 02 MANILA 004880

SIPDIS

SIPDIS

TOKYO PLEASE PASS TO DAS ERIC JOHN

E.O. 12958: N/A
TAGS: PREL MARR CASC KCRM RP
SUBJECT: VERDICTS IN ALLEGED RAPE CASE; AMBASSADOR PROTESTS
JUDGE'S CUSTODY DECISION

REF: MANILA 4864 AND PREVIOUS

MANILA 00004880 001.2 OF 002

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Verdicts
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1. Makati City Regional Trial Court Judge Pozon on December
4 found U.S. Marine Lance Corporal Daniel Smith guilty in a
November 1, 2006 alleged rape of a Filipina at the Subic Bay
Metropolitan Authority compound. He proclaimed a sentence
of "reclusion perpetua," statutorily no less than 20 and no
more than 40 years. He assessed civil damages at 100,000
pesos (approximately US$2,000). He based his decision
largely on prosecution testimony that the complainant was
intoxicated and not able effectively to resist, and dismissed
as "not credible" the testimony from Smith and his
co-defendants that the sex was consensual. Smith's attorney
notified Judge Pozon of his intent to appeal the verdict.

2. In the same judgment, Judge Pozon found Staff Sergeant
Chad Carpentier, Lance Corporal Keith Silkwood, and Lance
Corporal Dominic Duplantis not guilty as principals,
accessories, or accomplices to the alleged rape. With
Embassy and III MEF assistance, they departed Manila on a
U.S. military aircraft at 1615 local time. They will return
to their unit in Okinawa for further investigation by their
commander.

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Custody of Smith
----------------

3. Judge Pozon ordered that Smith be taken into immediate
custody at the Makati City Jail, and rejected a defense
motion to return Smith to U.S. custody during his appeals, as
provided by the Visiting Forces Agreement (VFA). In recent
days and weeks, Ambassador and senior Embassy officials had
underscored to senior Philippine government officials that,
in the event of any convictions, the U.S. would retain
custody, as provided by the VFA, until the end of all
judicial proceedings, including appeals. We have urged that
Smith's defense attorney, as well as the Philippine
Department of Justice, immediately file a new motion for
reconsideration of the custody issue (as well as on the
verdict itself). As of 1800 local time, Smith had been
transferred to the Makati City Jail, but not yet locked in a
cell. RSO has obtained the jail warden's agreement to allow
Smith to be in a single cell, to receive personal effects,
and to be accompanied by an Embassy/III MEF official outside
the cell at all times.

4. Ambassador and DCM have protested vigorously to senior
GRP officials over Smith's detention in Philippine custody,
contrary to the VFA. Philippine Cabinet officials are
conferring with President Arroyo to seek a way out of the
impasse over custody triggered by Judge Pozon's order. The
Secretary of Justice and the Department of Foreign Affairs

SIPDIS
have released statements supporting the view that Smith
should be in U.S. custody during his appeal, according to VFA.

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Embassy statement
-----------------

5. Embassy released the following statement immediately
after the verdict on December 4. We will work with
Washington on a statement tonight regarding Smith's custody.

Begin text

Verdict in Subic Case

The U.S. Embassy notes the decision of the Philippines court
in the case of the four U.S. service members accused of
involvement in the alleged rape of a Filipina citizen on
November 1, 2005.

With their acquittal on criminal charges, Carpentier,
Duplantis and Silkwood will return directly to their military
unit. Their Commander will now take action regarding the
completion of the U.S. military's own investigation of this
case. The U.S. will continue to abide by the Visiting Forces
Agreement through the completion of all judicial proceedings,

MANILA 00004880 002.2 OF 002

including any appeals.

This has been a difficult and emotional matter for all
involved, and for their families and friends. The U.S.
Government has adhered throughout to the terms of the
Visiting Forces Agreement (VFA), which provides the framework
for U.S.-Philippines cooperation on legal cases involving
U.S. service members.
End text

KENNEY

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