DOJ junks Pemberton’s bid to dismiss murder case against him

Joseph Scott Pemberton. Photo from Olongapo City Police

MANILA, Philippines—The Department of Justice (DOJ) on Friday denied the appeal filed by US Lance Corporal Joseph Scott Pemberton seeking the dismissal of the murder case against him for lack of merit.

Pemberton is accused of killing Filipino transgender woman Jeffrey “Jennifer” Laude in Subic Freeport Zone last year.

“We reviewed the facts and the procedural backdrop of this case vis-a-vis the arguments in the Motion for Reconsideration and found no sufficient justification to reverse, alter or modify the resolution dated Jan. 27, 2015,” Justice Secretary Leila de Lima said.

Pemberton, in his appeal said his right to due process was violated when the Olongapo prosecutors’ office accepted additional evidence against him and he was not given the opportunity to respond to it. The additional evidence, Pemberton said, was used as one of the basis in filing the murder case against him.

But De Lima, in the resolution, said even if without the additional evidence, particularly the Naval Crime Investigation Service Report, there was still enough evidence to charge Pemberton with murder.

“Our assessment of the records of this case shows that even in the absence of the purported ‘additional evidence,’ a finding of probable cause for murder can be maintained against respondent [Pemberton]. There is sufficient evidence on record positively identifying respondent as the perpetrator of a crime,” the DOJ resolution said.

Pemberton, in his motion for reconsideration, also argued that he did not waive his right to answer the murder case against him but he merely sought a suspension of time to submit counter-affidavit until he could examine the additional evidence against him.

The DOJ, however, said evidence cannot be excluded due to the voluntary nonparticipation or personally-determined degrees of participation of respondent in various aspects of the preliminary investigation.

“Respondent cannot subject the results of the preliminary investigation to his whims and capricious behavior, or to his selective and arbitrary decisions on when to and when not to participate voluntarily in the various stages of the preliminary investigation,” De Lima said.

“A preliminary investigation is a mandatory and a compulsory process … not a convivial party that respondent can attend or leave intermittently at his own consequence whatsoever,” she added.

On the findings of treachery, abuse of superior strength and cruelty, the DOJ said the nature of the injuries of Laude showed that she did not have the opportunity to defend herself.

“The extent of Laude’s injuries clearly indicates that respondent abused his superior strength when he killed Laude. Weighing the physical evidence and the medical reports, and considering the fact that respondent is a member of the United States Marine Corps, who is surely well-trained in combat, as compared to Laude, a transgender, common sense of an average man will tell him that the qualifying circumstances of treachery and abuse of superior strength should be appreciated against the respondent,” the resolution stated.

The dismissal of Pemberton’s motion for reconsideration paves way for his arraignment on Feb. 23, Monday.