The Department of Justice may have ordered its dismissal three months ago, but the case of "Reckless Imprudence Resulting in Homicide" against actor Richard Gutierrez remains pending.
The criminal case was filed against Richard, 26, by Lorayne Pardo, 30, on July 23, 2009, two months after the death of her husband Nomar Pardo.
Nomar, Richard's personal assistant, was killed on May 22, 2009, when the actor crashed the Nissan Skyline he was driving in Silang, Cavite. The 42-year-old Nomar, who was seated in the back of the car, was thrown out of the rear window, and was declared "Dead On Arrival" at a Silang hospital. (CLICK HERE to read related story.)
On March 1 this year, former Justice Secretary Agnes Devanadera dismissed the case against Richard. In her Resolution, Devanadera ordered the provincial prosecutor of Cavite to withdraw the Information from the court, and declared the criminal Complaint against Richard dismissed.
Following the DOJ's dismissal of the case, the Gutierrezes issued statements expressing gratitude and claiming exoneration for the most famous member of their high-profile family. Annabelle Rama, the family matriarch, relayed the news of the dismissal to the media. (CLICK HERE to read related story.)
But Lorayne Pardo's lawyers countered with a Motion for Reconsideration at the DOJ, which still has to be acted upon to this day. As a result, the Resolution issued by Devanadera did not become final and executory.
In brief, the criminal case is not closed.
In a press conference last March 24, Pardo's counsel, Atty. Firdausi Abbas, assailed the Devanadera Resolution as being "contrary to the evidence presented, the facts, and the pertinent laws."
Furthermore, Abbas told reporters, the DOJ Resolution was "not binding" on the courts. He argued that Devanadera could not dismiss a case already in the courts because this would be a breach of the Constitution.
The DOJ, Abbas noted, is under the government's Executive branch, while the courts (such as the Cavite Municipal Circuit Trial Court in question) are under the Judicial branch. One branch, he noted again, cannot dictate upon the other.
(Abbas is referring to the Philippine Constitution, Article III, Section 1, noting the separation of powers of the three co-equal branches of government—Executive, Legislative, and Judiciary—with "each branch being supreme in its own sphere but with constitutional limits and a firm tripod of checks and balances.")
Abbas conceded that the DOJ Secretary had the power to order her prosecutors, who are under the DOJ, to file a Motion to Withdraw the Information on Richard already filed with the court.
But the DOJ Secretary, he argued, had no power to grant or deny the Motion to Withdraw, much less dismiss the Complaint outright. That power remained with the court, he reiterated, and the decision on it depended on the presiding judge's own assessment of the evidence.
In the Richard Gutierrez case, however, Presiding Judge Cupin-Tesorero reached a different decision: She inhibited herself from the case.
VOLUNTARY INHIBITION. On May 31, PEP obtained a copy of Judge Veronica Cupin-Tesorero's Order saying she was inhibiting herself from trying the case.
The four-page Order, signed by the judge on May 19, stated that her decision to inhibit was a voluntary act.
It was, the Order said, "pursuant to the 2nd paragraph of Sec. 1 of Rule 137 of the Revised Rules of Court." Rule 137 states: "A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons."
According to the court Order, the inhibition was an offshoot of Lorayne Pardo's lawyers filing a Motion to Inhibit, which accused the judge of showing a "manifest bias for the accused."
In their Motion to Inhibit, Pardo's camp further claimed that the alleged bias would "negate a fair consideration of the issues in this case and prejudge the outcome of the case [to] be favorable to the accused."
The accusation of bias came after Judge Cupin-Tesorero cancelled a scheduled March 31 arraignment, saying the absence of Richard Gutierrez and the fiscal made it impossible to proceed. (CLICK HERE to read related story.)
Pardo's lawyers, in their Motion to Inhibit, said: "During the hearing, the Honorable Presiding Judge appeared to be in a hurry. She noted that the fiscal was not around and declared that she has no jurisdiction in the absence of the fiscal and completely washed out the hearing as scheduled, the appearances were not even called. While the undersigned [Atty. Jainal] was still arguing, she desperately said put your comment in writing, put it in writing; put it in writing."
The lawyers also claimed that the judge's actions "gave the impression that the case is closed and the arraignment of the accused is moot and academic."
NO ERROR, NO BIAS. The lawyers of Richard Gutierrez—Gener Asuncion and Malou Panganiban of the Belo Gozon Elma Parel Asuncion Lucila (BGEPAL) Law Offices—countered by saying that the actions of the judge did not show bias.
Richard's defense lawyers, in a document of Opposition submitted to the Cavite court, said: "We submit, however, that the Presiding Judge did not err, much less show manifest bias to the accused by canceling the scheduled arraignment due to the absence of the public prosecutor, because the presence of the public prosecutor is required in the arraignment for purposes of plea bargaining, determination of civil liability, and other related matters.
Furthermore, Richard's lawyers added: "The presiding Judge did not peremptorily dismiss the scheduled arraignment (not hearing), but formally advised the private complainant and the defense counsel that the public prosecutor is not around and thus could not proceed with the arraignment without her presence as she directed the private prosecutor to put in writing his comment."
They also said: "Indeed, the Court thenafter took down the oral manifestation and comment of the private prosecutor and of the defense counsel on the continuance of the scheduled arraignment merely because of the public prosecutor."
LACK OF FAITH. In her court Order, Judge Cupin-Tesorero agreed with Richard's lawyers arguments.
The judge's Order stated: "Contrary to the claim of the complainant, the Presiding Judge has not shown any manifest bias or impartiality on either the prosecution or the defense in the course of the arraignment of accused Richard R. Gutierrez. She has tried to strictly follow the proper and appropriate Court proceedings therein."
However, the same judge decided that, "after a careful and in-depth self-examination," she was inhibiting herself from the case.
Judge Cupin-Tesorero's Order explained: "It is quite apparent that whatever judicial action or discretion that would be taken by the Presiding Judge of this Court, the complainant would still have strong reservation against the effectivity of the court proceedings herein, which is a clear sign of lack of faith and trust in her capacity to render just and fair trial."
Citing the book Supreme Courts Records Annotated (Volume 410, by Jorge C. Coquia), the judge quotes: "At the very sign of lack of faith and trust in his actions, whether well-grounded or not, the judge has no other alternative but to inhibit himself from the case. The better course for the judge under such circumstances is to disqualify himself. That way, he avoids being misunderstood; his reputation for probity and objectivity is preserved."
In the end, Judge Cupin-Tesorero ordered that all court records on the Richard Gutierrez reckless-imprudence case be forwarded to the Regional Trial Court, Branch 18, in Tagaytay City.
Tagaytay's RTC Branch 18 was being given the records, in Judge Cupin-Tesorero's words, "for its approval of the voluntary inhibition of the undersigned Presiding Judge, and for the referral thereof to another judge."
The inhibition issue has yet to be resolved by the Tagaytay RTC.
PARDO'S LAWYERS VS. RICHARD'S LAWYERS. In a phone interview last May 25, Atty. Abbas told PEP that it was a "relief" that Judge Cupin-Tesorero had inhibited herself from the case. "That was our petition," he said.
He also said the legal process is far from over.
They will pursue other legal measures, Abbas said, including filing motions to cite Richard and his lawyers Gener Asuncion, Malou Panganiban, and Sheryl Mallari for "contempt of court."
Abbas accuses them of using "delaying tactics" during the Cavite court arraignment.
Abbas said the Pardo family particularly took offense when Richard's lawyers presented to the court a medical certificate stating that Richard had "acute gastro-enteritis," to excuse him from the arraignment of February 10. (CLICK HERE to read related story.)
According to Abbas, they are also preparing to subpoena Jose M. Oreta, the doctor who issued the certificate attesting to the actor's medical condition. Moreover, he said, they plan to file a case against Dr. Oreta with the Philippine Regulation Commission, which issues licenses to professionals, including doctors.
They have around "25 witnesses," Abbas said, who will testify that the actor did not have "acute gastroenteritis" during the arraignment, but was instead "in ABS-CBN."
Pardo's lawyer says they are also planning to file, before the Makati Regional Trial Court, a case against Christine F. Bio, the BGEPAL lawyer who notarized Richard's medical certificate. Abbas says he will ask the court to revoke Bio's authority to act as a notary public.
PARDO'S LAWYERS VS. DEVANADERA. Another front they are working on, Lorayne Pardo's lawyer said, is the disbarment case they intend to file against former Justice Secretary Agnes Devanadera.
Devanadera, as Justice Secretary at the time, released the DOJ Resolution dismissing the reckless-imprudence case, a Resolution that Abbas calls "grossly erroneous."
"Ngayon lang namin ipa-file yung disbarment, kasi ayaw naming masabi na ginagamit lang kami during elections," Abbas told PEP, alluding to Devanadera's failed candidacy for congresswoman in Quezon Province. "Pero yung disbarment, ipa-file namin. Kahit na high school [student], makikita na mali yung sinasabi niya sa resolution niya."
CANNOT BE REACHED FOR COMMENT. PEP made several attempts to get the side of Richard Gutierrez's lawyers since Tuesday, May 25. On every occasion, they were unavailable for comment.
On Tuesday night, May 25, PEP sent e-mail messages to Attorneys Asuncion, Panganiban, Mallari, and Bio, but up to press time, none of the lawyers has replied.
On Wednesday, May 26, PEP sent a text message to the personal cellphone number of Atty. Malou Panganiban. We received no reply.
Throughout Thursday, May 27, PEP called the BGEPAL Law Offices more than ten times to get the side of the four lawyers. Again, they were unreachable. According to their respective secretaries, Atty. Mallari had already resigned, Atty. Asuncion was in a meeting, Atty. Panganiban was not in the office, and Atty. Bio was in a seminar.
In the afternoon of the same day, we called Bio's office again. Bio's secretary told PEP that her boss was already on the way to the office, and that the lawyer would return our call as soon as she arrived. However, there was no call that evening or the next day. At press time, or seven days later, there was still no call.
On Monday, May 31, PEP made another five calls to the BGEPAL Law Offices. Again, the lawyers were unreachable for comment. Asuncion's secretary, however, relayed to PEP that the lawyer had been informed about our queries. She also said that Asuncion told her to remind him of the PEP inquiry once he returned to the office.
Yesterday, June 2, PEP sent another set of e-mail messages to Attorneys Asuncion, Panganiban, Mallari, and Bio. This second set included questions about the Cavite court Order in which Judge Cupin-Tesorero said she was inhibiting herself from the case. At press time, not one of the four lawyers has replied in any form.
PEP also tried to reach former Justice Secretary Agnes Devanadera to get her response to the disbarment case that Abbas has threatened to file.
PEP sent three text messages to Atty. Devanadera's personal number, on the following dates and time: May 27, 9:56 a.m.; May 28, 1:43 p.m.; and May 31, 6:15 p.m. At press time, PEP has received no reply.
ANNABELLE RAMA HAS NO COMMENT. On Tuesday, June 1, PEP tried to get the reaction of the Gutierrez family on the latest developments.
Since Richard Gutierrez is currently in Los Angeles and since the protocol with the star is that media questions are coursed through his manager, we attempted to get in touch with Annabelle Rama, the star's manager and mother.
We asked PEP contributing writer and blogger Jojo Gabinete to forward six questions to Ms. Rama. The questions, put together by PEP managing editor Karen Pagsolingan, were contained in a text message.
Here is PEP's full text message to Ms. Rama:
Good afternoon, Ms. Annabelle. Gusto sanang kunin ng PEP ang panig niyo tungkol sa kaso ni Richard. Heto po ang mga tanong: (1) Ano po ba ang estado nito? Ayon kasi sa dokumento na nakuha namin mula sa Silang, Cavite Municipal Circuit Trial Court, ipinalipat na ang kaso sa Tagaytay? (2) Umaangal ang kabilang kampo sa paglabas-labas ng bansa ni Richard kasi naka-bail daw po ito. Ano ang masasabi niyo? (3) Sasampahan din daw po ng kaso ang law firm bunsod sa pagdadahilan nila para di matuloy ang arraignment ni Richard? (4) Mali-mali raw ang basehan ng DOJ sa pag-dismiss ng kaso ni Richard? Sana mabigyang linaw na ng inyong kampo ang mga isyung ito. Salamat.
Gabinete says he relayed these questions to the Gutierrez matriarch on the night of June 1. On the afternoon of June 2, we received news that Annabelle Rama received all our questions, but has refused to comment on the case.
PEP is open to Richard Gutierrez, his family, and his lawyers expressing their views on this article at a future time, at their convenience. PEP is likewise open to Atty. Agnes Devanadera giving her reaction to this article.