La voz como elemento del mensaje sonoro publicitario

Accused COCO M. MARTIN, by undersigned counsel, most respectfully move that this Honorable Court conduct a determination of probable cause pursuant to Article III, Section 2 of the 1987 Constitution and in support thereof state the following:

PREFATORY

The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings to mind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien

to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be enhanced.

1. The Supreme Court, in a recent case also involving herein accused has made the foregoing strong admonition against public prosecutors.

2. It is unfortunate that despite the admonition, the panel of prosecutors who conducted the preliminary investigation of the instant cases chose to defy such clear warning by no less than the Supreme Court, as will be discussed below.

In the conduct of preliminary investigation, the members of the Investigating Panel committed grave prosecutorial misconduct which deprived accused of their right to due process.

---3. “The preliminary investigation proceeding, like court proceedings, is subject to the requirements of both substantive and procedural due process.”

4. As an indispensable requirement of due process, the investigating prosecutors must possess the cold neutrality of an impartial judge.

5. In the instant cases, however, accused-movant was denied due process when the panel of public prosecutors committed the following grave misconduct which also clearly showed that they did not possess the cold neutrality of an impartial judge.

5.1. Despite failure to comply with the requirement under Rule 112, Section 3 (a) of the Revised Rules of Criminal Procedure that “the affidavits of the complainants and his witnesses shall be subscribed and sworn to before any prosecutor x x x,”

the investigating prosecutors gave due course to the criminal complaints of the alleged widows, instead of dismissing them outright.

5.2. The Investigating Panel refused to grant clarificatory hearing despite the existence of important issues and matters to be clarified before a fair resolution of the complaints may be made.

5.2.1. While it is true that the conduct of clarificatory hearing is not mandatory, Rule 112, Section 3(e) directs that it be conducted when there are facts and issues that must be clarified before the prosecutors can resolve the cases.

5.2.2. Accused-movant repeatedly requested and insisted on the panel of investigating prosecutors the need to require the complainants and their witnesses to appear for confrontation with the accused-movant and for clarificatory questioning.

5.2.3. Accused-movant identified the following important issues and crucial facts that needed clarification:

a) Re the confession of Julius Caesar, the specific dates of the alleged meetings attended by the accused-movant.

It is well to note that the accused-movant was linked by Julius Caesar to the three killings as the alleged masterminds who had allegedly ordered the liquidation of former CPP/NPA/NDFP members who were supporting AKBAYAN party-list. Accused-movant pointed out that Julius Caesar failed to specify the dates in which the alleged meetings were held and in this connection manifested their intention to pose clarificatory questions.

b) Re the submission of the investigation report of the Philippine National Police of Nueva Ecija on the deaths of Felipe, Peralta and Bayudang.

Accused-movant also pointed out that witnesses Alvaro Maximo, Cleopatra Anthony and Julius Caesar executed their Sinumpaang Salaysay only March 18, 2013. The first two executed their Sinumpaang Salaysay on March 19, 2013 while Caesar executed his the following day.

After comparing the accounts of the above three witnesses with those who gave their statements shortly after the alleged killings, accused-movant noted glaring contradictions which support a reasonable conclusion that there existed a pattern of suppressing evidence that were executed or prepared shortly after the killings and that the suppressed evidence were replaced by recent statements taken only in March 2013.

Given the above and considering that accused-movant was charged with non-bailable crime of two counts of murder, the investigating panel should have subpoenaed the complete result of the original police investigations on the killings.

c) The need to establish the identity of the complaining witnesses

This Honorable Court can take judicial notice of the fact that when the herein complaining witnesses filed a petition to disqualify accused-movant’s party-lists for last year’s electoral contest, the same witnesses appeared before the COMELEC with their faces covered with scarves. They refused to remove these scarves on the shallow pretext of personal security,

thereby rendering questionable their real identities.

The panel of investigating public prosecutors should have dispelled doubts over the complainants’ identities by requiring them to appear and making themselves available for questioning in the presence of the accused-movant.

As stated in accused-movant’s letter dated 14 January 2013 addressed to the panel of investigating prosecutors, what actually happened during the supposed preliminary investigation was a “hide and seek” type of proceedings whereby the complainants surreptitiously appeared before the public prosecutors without notice to the accused-movant. A big question remains: Was the panel able to confirm the identity of the complaining witnesses?

d) There were material gaps, ambiguous and sweeping statements and serious inconsistencies in the affidavits of Julius Caesar and the complaining witnesses.

Accused-movant enumerated in their counter-affidavits and their subsequent pleadings and letters submitted to the panel the material gaps and inconsistencies in the claims of the newly surfaced witnesses with those of the first-hand accounts of witnesses whose testimonies or statements were secured shortly after the killings.

e) Lastly, considering that accused-movant has sufficiently shown that the instant cases are part of the existing pattern to neutralize them, the panel of investigators could have addressed this by making the complainants available for questioning by the accused-movant.

In the same letter dated 14 January 2013, accused-movant insisted that a clarificatory hearing with the appearance of the complainants and their witnesses in an open public hearing was necessary considering that the complainants and their witnesses are under the custody and control of their military “handlers.”

Prosecution witnesses Alvaro Maximo, Cleopatra Anthony and Julius Caesar claimed to be rebel returnees who have surrendered to and are likely to be under the custody or protection of the military.

A clarificatory hearing could have given the public prosecutors and the defense the opportunity to test the voluntariness and credibility of the complainants and their witnesses. The panel of investigating prosecutors did not only refuse to consider the foregoing reasons for accused-movant’ request for clarificatory questioning, the panel even went to the extent of accusing accused-movants of delaying the proceedings.

5.3. The need for clarificatory hearing is even admitted by panel member Assistant Provincial Prosecutor Eddie Gutierrez who wrote by hand his comment in the Joint Resolution dated 15 January 2013 that “I concur with the conclusion but I

would have been more than satisfied if the witnesses for the prosecution were present.”

5.4. The panel readily dismissed accused-movants’ manifestation and request to allow them to submit a Memorandum.

Although the submission of a Memorandum is not required, Section 33 of the DOJ Manual for Prosecutors allows the filing of the same in cases involving difficult or complicated questions of law or fact.

5.6. Despite express manifestation, the panel did not give the accused-movants the opportunity to avail of their right to file a Motion for Reconsideration pursuant to and within the period provided under Section 56 of the Manual for Prosecutors.

The evidence submitted by the prosecution is insufficient to establish probable cause against accused-movants.

---6. An analysis of the evidence presented by the prosecution against each accused-movant reveals the impossibility of the accused having participated in the alleged killings.

PRAYER

WHEREFORE, premises considered, in the interest of justice and to uphold the rule of law, accused COCO M. MARTIN prays for the proper judicial determination of probable cause on this case.

Other forms of relief that are just and equitable under the premises are also prayed for.

Baguio City for Palayan City. April 9, 2013.

JOSE ABOGADO Counsel for the Respondent

182 Session Road, Baguio City PTR No. 123/Baguio City/12-31-13

Roll of Atty. No. 45678 IBP Lifetime Membership No. 910

MCLE Compliance No 9876

NOTICE OF HEARING PROOF OF SERVICE:

1. Clerk of Court 2. Opposing Counsel

Form 25l. Motion to Quash

Republic of the Philippines REGIONAL TRIAL COURT FIRST JUDICIAL REGION

BRANCH 4 Baguio City

PEOPLE OF THE PHILIPPINES, Plaintiff,

Criminal Case No. 00567

v. For: Theft

MANNY A. REYES,

Accused.

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