DOJ denies Pemberton bid to dismiss murder case
MANILA, Philippines–The Department of Justice (DOJ) on Tuesday denied the bid of US Marine Lance Corporal Joseph Scott Pemberton to dismiss his indictment for murder over the killing of transgender Jeffrey “Jennifer” Laude in Olongapo last October.
“After a judicious scrutiny of the evidence on record, the DOJ found that all elements of murder are satisfied, thus, there is no reason to alter, modify, or reverse the resolution of the City Prosecutor of Olongapo City,” the DOJ resolution signed by Justice Undersecretary Jose Vicente Salazar said.
Laude was found dead on Oct. 11, 2014, inside the bathroom of Room 1, Celzone Lodge, Olongapo City. After a joint parallel investigation by the Philippine National Police-Olongapo City Police Office and the United States Navy Criminal Investigative Service (NCIS), and upon testimony of seven witnesses, a complaint for murder was filed against Pemberton.
A preliminary investigation was conducted and eventually, the case is filed in court. However, after Pemberton filed the Petition for Review with the DOJ, the Olongapo City RTC Branch 74 suspended the proceedings pending ruling of the DOJ.
In his 33-page petition filed last December, Pemberton, through his lawyer Rowena Garcia-Flores, argued that the findings of treachery, cruelty, and abuse of superior strength by the panel chaired by City Prosecutor Emilie Delos Santos were “based on nothing but conjectures and speculations.”
Their camp claimed that the resolution was “full of logical leaps and unwarranted conclusions” and “also disregarded the fundamental principles pertaining to treachery as a qualifying circumstance in the crime of murder.”
Pemberton also claimed that there was “no direct evidence to show how the alleged attack was commenced and executed” and that the conclusion of prosecutors were based on “surmises and conjectures of the supposed witnesses… and inadmissible object and documentary evidence.”
Pemberton’s camp also said there must first be a “deliberate or conscious choice of a means of execution that insures the offender’s safety from retaliatory act” from the victim before an act can be considered as a qualifying circumstance in murder.
He also questioned the finding of cruelty by the prosecutors. His lawyer pointed out that there is cruelty only when the other injuries or wounds are inflicted deliberately by an offender, which are not necessary for the killing of the victim.
But the DOJ, in its resolution, said Pemberton’s claim of lack of any direct evidence linking him to the crime “does not preclude a finding of probable cause. It has been the consistent pronouncement of the Supreme Court that, in such cases, the prosecution may resort to circumstantial evidence.”
The DOJ resolution also pointed out that contrary to Pemberton’s claim that treachery was not involved in the death of Laude, evidence has shown the manner of attack employed by Pemberton on Laude.
“Respondent Pemberton rendered Laude unable to defend [herself] or to retaliate; respondent Pemberton choked [her] from behind; the autopsy results as well as the examination conducted by the NCIS indicate that there were visible pressure marks and a circular purplish discoloration around his neck,” the DOJ said.
The DOJ also noted the short span of time it took to kill Laude, 30 minutes after Mark Clarence Gelviro (Pemberton’s friend) left the room which indicates suddenness of the attack.
“Moreover, since Laude went with respondent Pemberton on [her] own volition to engage in sexual acts in exchange for money, Laude most probably did not expect to be in danger and, consequently, [she] was likely unable to defend [herself] against the unwarranted attack,” the DOJ further stated.
With regards to abuse of superior strength, the DOJ noted the status of Pemberton, a member of the US Marine Corps who is known to have the strictest recruitment standards while Laude, although biologically a man, chose to adapt a woman’s physical appearance and behavior.
“Thus it is clear that there is manifest physical disparity between Pemberton and Laude and that the former took advantage of his superior strength to cause the death of the latter, as evidence by the multiple abrasions and contusions found on Laude.”
The DOJ also noted that Pemberton’s claim that he was not given the chance to controvert the NCIS report during preliminary investigation was baseless because he was given the opportunity to present his side through a counter-affidavit but he failed to do so.
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