Binay wife nixes bid to include Mercado as witness in graft trial

DR. ELENITA Binay, the wife of the Vice President, has opposed the move to make former Makati vice mayor Ernesto Mercado as a witness in her graft trial over the alleged overpriced Makati city hall furnishings when she was mayor in 1999.

In her opposition to the prosecution’s motion to amend the pre-trial brief, Dr. Binay through her counsels said the prosecution showed no good cause to include Mercado as a witness.

“A perusal of the prosecution’s motion reveals that the prosecution failed to provide adequate reasons, and particular and specific demonstration of facts that will establish good case to allow the presentation of evidence which are not listed in the pre-trial order,” the opposition said.

The defense had blocked Mercado’s testimony when he was supposed to take the witness stand last June 4 because he was not included in the pre-trial order of witnesses for the graft trial.

In their motion filed before the antigraft court Fifth Division, the prosecutors said they failed to include Mercado in the original list of witnesses finalized on Sept. 2013 because he only surfaced as privy to the corruption allegations against Binay’s family in the middle of 2014.

Mercado was vice mayor of Makati when VP Binay was mayor.

“Witness is a known ally of the Binays having been the vice mayor during the times when the husband of the accused was mayor for several terms… It was only in the middle of 2014 that Vice Mayor Mercado came out in the open and made revelations against the Binays and declarations against his own interest. Prior to this, nobody could be certain that Vice Mayor Mercado has pertinent information which he could willingly and truthfully disclose,” the prosecutors’ motion said.

“To state the obvious, the prosecution could not have known that Vice Mayor Mercado was a viable witness at the time pre-trial was being conducted,” it added.

But Binay’s lawyers said the prosecution’s claim that it “could not have known that Mercado was a viable witness” is not a “good cause for the presentation of witness and of a piece of evidence.”

The defense counsels castigated the prosecutors that they should have known early on that Mercado is a viable witness to be included in the pre-trial brief.

“(T)he prosecution should have known all of their potential witnesses and documents during the pre-trial. In fact… (t)he prosecution, at the time of the filing of the information should have already identified all of its witnesses and documents necessary in proving the allegations,” Binay’s opposition said.

Allowing the prosecution to present the witness would mean the prosecution is now permitted to freely discover evidence in the course of the trial, BInay’s defense lawyers further said.

“Otherwise, trial before the Courts would in effect be another investigation during which the prosecution is free to discover evidence that they should have known in the first place…” the opposition said.

Mercado was set to testify about the original audit report he supposedly furnished Audit Commissioner Heidi Mendoza last Aug. 2014. The said report found anomalies in Dr. Binay’s furnishings deal.

Mendoza was then having troubles testifying in the trial proper against Dr. Binay because she could not present to court the original copy of the audit report.

When Mendoza then presented the original copy of the audit report and said it was handed to her by Mercado, the court said Mercado should be the one testifying about the authenticity of the original audit report.

“The exchanges (in the transcript of stenographic notes) unmistakably point to the fact that Mr. Mercado is a vital witness and establishes sufficient and just cause for the prosecution to present Mr. Mercado as witness. He will identify this report and give competent and relevant testimony if allowed to testify,” the prosecutors said in its motion to include Mercado as witness.

The prosecutors then challenged the defense to instead grill Mercado during the cross examination instead of “resorting to legal technicalities to suppress his testimony.”

The graft case stemmed from the alleged P21.536 million overpricing of the P72-million contract for panel fabric partitions and connector brackets for the Makati city hall when Dr. Binay was mayor.

Dr. Binay allegedly bypassed bidding procedures to favor bidder Office Sales International, to the disadvantage of government.

The case is the result of audit findings led by Commission on Audit commissioner Mendoza who said the bidding for the contract was rigged.

Mercado is the main witness against Vice President Binay, his son Makati Mayor Junjun, their alleged dummies, and other Makati officials in a Senate investigation over the purported overpriced Makati projects for kickbacks when the vice president was mayor.