"Just a setback."
This was how Lorayne Pardo's lawyer, Atty. Firdausi Abbas, described the resolution issued by the Dept. of Justice (DOJ), which recently dismissed Richard Gutierrez's Reckless Imprudence Resulting in Homicide case. (CLICK HERE to read related story.)
During the press conference held last March 24 at the Abbas Law Firm in Greenhills, San Juan, Lorayne's camp declared that the resolution will not halt the arraignment at the Municipal Circuit Trial Court in Silang, Cavite scheduled on March 31.
Atty. Abbas and Atty. Ombra Jainal, both working pro bono to help Lorayne in her "fight for justice," said the arraignment will push through because they filed a motion for reconsideration to the DOJ to bar the Provincial Prosecutor of Cavite, Emmanuel Velasco, from acting on the former DOJ Secretary Agnes Devanadera's order to withdraw the case from the court.
According to Atty. Abbas, Secretary Devanadera's resolution to dismiss the homicide case is "not binding" on the courts. He said the Cavite court is bound to "assess the merits of the case," and not dismiss it just because of the DOJ resolution. The lawyer said he trusts Judge Victoria N. Cupin-Tesorero to not "agree with the decision of the Secretary of Justice."
The DOJ, Abbas said, is under the Executive branch of the government, while the courts are under the Judiciary branch.
Art. III, Sec. 1 of the Philippine Constitution guarantees the separation of powers between the three branches of the government—the Executive, the Legislative, and the Judiciary—"each branch being supreme in its own sphere but with constitutional limits and a firm tripod of checks and balances."
What the DOJ can only do is to order prosecutors, who work for the DOJ, to file a motion to withdraw the criminal Information that they submitted to the courts. However, it is still up to the Court to grant or deny the said motion to withdraw based on its own assessment of the evidence. Atty. Abbas said he is confident that the Judge Cupin-Tesorero will not grant the prosecutor's motion because the evidence is clear.
DOJ RESOLUTION. The resolution, signed by Secretary Devanadera and promulgated on March 1 just before she resigned from the DOJ, "resolve(d) the separate petitions for review by the complainant Lorayne Torres Pardo and Richard Rama Gutierrez of the Provincial Prosecutor of Cavite."
This DOJ resolution cited three points to justify the Secretary's dismissal of the case: (1) that Richard left the incident because he was "injured," and that his departure can "hardly be considered as an act of abandonment," (2) that Lorayne Pardo's statements were only "hearsay at best," and (3) that the damage sustained by Richard's sports car was not a basis to conclude that he "was driving the vehicle at a 'mind-boggling speeds' (sic)."
In her petition before the DOJ seeking to upgrade the case to reckless negligence resulting to homicide, Lorayne argued that the prosecutor "erred in completely disregarding the presence of the qualifying circumstance of the failure of respondent [Richard] to lend immediate assistance to her husband, the deceased Nomar E. Pardo, during the fatal accident in the early morning of May 22, 2009."
The removal of the qualifying circumstance reduced the maximum penalty that can be served to Richard if he were found guilty by the court. It also opened the possibility of probation. (CLICK HERE to read related story)
Secretary Devanadera found "no merit" in Lorayne's petition, and instead granted the petition of the actor for the dismissal of the case, in effect dismissing the charge of simple negligence resulting to homicide charges against Richard.
MOTION FOR RECONSIDERATION. Lorayne's motion for reconsideration asked the DOJ through its new Secretary Alberto Agra to reconsider former Secretary Devanadera's resolution, and thereby to dismiss Richard's petition for review, and to grant her request to add the qualifying circumstance to the current simple imprudence resulting to homicide case being heard in Cavite.
In the press conference, Atty. Abbas explained that they are filing the motion for reconsideration because the resolution is "contrary to the evidence presented, the facts, and the pertinent laws."
In their Motion for Reconsideration, Atty. Abbas argued: (1) Richard was still in violation of the law when he "left the scene of the accident without aiding the victim," whether he intended to or not, (2) Lorayne's presence at the scene of the accident is not a serious issue because "the evidence she presented is overwhelming," and (3) "only a blind person wouldn't know" the car was "really driven fast."
To explain the first point, Atty. Abbas argued in the motion for reconsideration that Richard's departure from the scene of the accident without helping Nomar is a "clear violation of the law and its prohibition." He cited Sec. 55 of the Land Transportation Code (R.A. 4136), which states, "The driver can leave his vehicle without aiding the victims if (1) he is in imminent danger of being harmed, (2) he wants to report to the nearest officer of the law, or (3) if he desires to summon a physician or a nurse for medical assistance to the injured."
It must be recalled that in his defense before the Cavite Prosecutor's Office, Richard said other people at the scene of the crime "assured" him that they would help Nomar. He was then rushed to a hospital because he was "injured."
Lorayne's motion for reconsideration, however, argued that Richard's reasons do not fall under any of the three prescribed by R.A. 4136. The motion stated, "It is also noteworthy to mention that R.A. 4136 is a special law and whether or not there was any intention on the part of the respondent to leave it is irrelevant. It is sufficient that the respondent violated it. Any reason of the respondent for leaving the vehicle or scene of the accident and failing to render immediate assistance to the injured, outside of the three circumstances mentioned in Sec. 55 or the above-mentioned law is not tenable."
Lorayne's motion for reconsideration added, "The injuries sustained by the respondent were indeed minor and would not justify his leaving of the accident." The motion concluded this from the DOJ resolution, which stated on page 5 that Richard was "still able to stand and move around after the accident."
On Devanadera's second point, the motion for reconsideration said it was "grossly erroneous" because it "lost sight of the evidences presented by the complainant in her petition."
The motion refers to the 26 annexes in total which were attached as proof of evidence in Lorayne's petition to the DOJ. They include pictures of Richard's wrecked car; pictures of damaged Meralco posts; pictures of three severed coconut trees; the medical certificate of the deceased, which points to lacerated organs of the body that could only have been caused by tremendous impact; and the police report of P/Supt. Danilo Buentipo and PO1 Bonifacio Tañola.
Atty. Abbas insists that "The evidence presented does not only establish a probable cause but proof beyond reasonable doubt." It is his position that given the "overwhelming" evidence, it does not matter whether or not Lorayne was present in the area when the accident happened.
With regard to Devanadera's third assertion that the damage to the car "was not a basis to conclude that respondent was driving the vehicle at a 'mind-boggling speeds' (sic)," Atty. Abbas just let out a sardonic laugh.
Holding up pictures of Richard's totaled Nissan GTR, Atty. Abbas stressed, "Now, anyone who can see the pictures, just the pictures, knows that the car was really driven fast. This conclusion is simple common sense."
He then accused the outgoing DOJ secretary of "corrupt" practices arising from "incompetence" and "indolence," branding her resolution as "malicious."
"Only a blind person will not know. Now, Sec. Devanadera certainly is not blind. She's just plainly incompetent, plainly corrupt. Now, when we say corrupt, it is premised that corruption stems not only from dishonesty but also from incompetence, and from indolence," Atty. Abbas said.
CONTACTING DEVANADERA. After the presscon, PEP immediately tried to get in touch with the former DOJ secretary, Agnes Devanadera, to give her a chance to answer to the allegations of Atty. Firdausi Abbas.
At 2:05 p.m. yesterday, March 25, PEP sent a text message to her personal cell phone number, but we got no reply the whole day.
At exactly 12 noon on March 26, PEP again sent the same text message, and still got no reply.
Again, around 2:30 p.m., PEP called the DOJ offices to get Devanadera's side. After being passed around different offices (Information Division, Docketing, Office of the Secretary), we were given the same cell phone number we had already been using to contact Devanadera.
At 3:45p.m., PEP sent another text message to follow-up. No reply. We then called the number, and it rang for five times. The call was not picked up.
At 5:28 p.m. and 6:26 p.m., PEP sent two text messages. Still no reply.
PEP is still open to Devanadera if she wants to give her side on the issue.
RICHARD'S LAWYER. After the DOJ resolution was released to the media, PEP called Atty. Gener Asuncion, the legal counsel of Richard Gutierrez, in his office at the BGEPAL Law Office in Makati on March 18.
PEP clarified the steps that Richard's camp had taken to get the DOJ's favorable decision.
According to Atty. Asuncion, their camp appealed to the DOJ for the "reversal" of the decision of the Provincial Prosecutor of Cavite, while the case was still pending in court last year.
"The DOJ evaluated the evidence presented by Richard and the other side," Atty. Asuncion said. "The DOJ found no evidence that Richard committed negligence."
He added, "The decision of the DOJ is there for everybody to read. The DOJ ruling has factual basis, it has ground, it has findings, it has legality."
Asked about the next steps in the case, he said, "The Provincial Prosecutor of Cavite must withdraw the information from the court in ten days."
What if the prosecutor fails to take action? "Magrereklamo kami," he said.
To answer Atty. Abbas' allegations of corruption and "bayaran" in the DOJ, Atty. Asuncion just laughed and said, "I don't know anything about that. We never indulge in these things."