After prosecution’s bombshells, what does Sara’s defense have?

There have been statements by Senate President Win Gatchalian that Vice President Sara Duterte’s impeachment trial may be done before the year ends. But with the prosecution’s decision to drop three of four impeachment articles against her, we might see the trial ending sooner than expected.

Lead public prosecutor Gerville Luistro said on Tuesday, October 13, that their evidence on unexplained wealth — the second article against Duterte — is enough to remove her from office and bar her from running in 2028.

Withdrawing an article during an impeachment trial is not really new as this happened in former chief justice Renato Corona’s trial. The House dropped five of eight articles. Eventually, Corona was ousted from his position — the first chief magistrate in the Philippines to have been convicted in an impeachment trial.

But there’s a difference between the two trials. The prosecution, in Corona’s case, withdrew the five articles before they could present their evidence for these articles.

In Duterte’s case, the prosecution had four. It presented evidence on alleged grave threats, misuse of confidential funds, and unexplained wealth. It never tackled the bribery allegation. And then Luistro announced that they would drop everything except the case on unexplained wealth.

“This has never happened before,” said defense spokesperson and counsel Michael Poa.

So, what will the defense’s next actions be after this rather surprising move from the prosecution?

Defense concerns

To clarify, the defense did not object to the prosecution’s motion to withdraw the three articles. Poa and lead defense counsel Sheila Sison made it clear that this was the House’s prerogative — each party should have the final say on how it intends to present its own evidence.

In his ruling, impeachment court presiding officer Chiz Escudero accepted the withdrawal with prejudice on the grave threats and confidential funds cases (meaning they can no longer be refiled by the prosecution), without prejudice to the bribery charge (since no evidence was ever presented in court).

One of the concerns of the defense, however, is whether they will be allowed to still present evidence on the two withdrawn articles.

“We had no problem with bribery because they never presented that. Our problem was the grave threats and confidential funds case because they already presented the testimonies of their witnesses there,” Poa said in Filipino.

“And we are not given now the opportunity to present rebuttal evidence through the testimonies of our witnesses…. Can we still present our evidence on those allegations or not? That’s one of the questions,” he added.

The defense will begin presenting its own evidence in November, but as Poa pointed out, it’s still unclear whether they will be able to present evidence on grave threats and confidential funds.

“There is no mechanism within the rules to allow the presentation of evidence on an article or on a charge that will not be voted upon by the court,” said Escudero.

Another sign that Duterte’s camp might not be given the opportunity is the relaxation of the sub judice rule. This principle bars parties — including the respondent — from publicly discussing the merits of the case to preserve the integrity of the proceedings. This gives Duterte’s camp the chance to present their evidence directly to the public, similar to what former senator Antonio Trillanes did after he was dropped as a prosecution witness. No holds barred.

But the defense finds this problematic too.

“Now, I know that the court will say that, well, the respondent’s given the equal opportunity to do as she pleases with respect to the allegation. She can say a lot of things. Use all the platforms, in the words of the lead prosecutor, to avail of these platforms to present their evidence through these platforms,” said Sison.

But it would be unfair for the Vice President to be unable to present evidence in the impeachment court itself, the proper forum, according to Sison, because “the Vice President was held to this formal proceeding and in this court and honorable members of this court took their oaths, senators, judges.”

Remedies, bombshells?

The parties — both the prosecution and the defense — cannot file a motion for reconsideration on the rulings made by the presiding officer. Only a senator-judge can.

Senator-judge Francis “Kiko” Pangilinan said he is open to reconsidering the ruling on the abandonment of the sub judice rule. So, for now, Poa said they will first consult the Vice President and inform her about the court’s decision then inform the court about her position on the ruling.

Is the defense considering filing a petition for certiorari with the Supreme Court? This is a legal remedy used to seek review of grave abuse of discretion on the part of the impeachment court. If granted, this can overturn a ruling.

“As for certiorari, we are not considering a certiorari at this point. We are not talking about that,” said Poa.

In her manifestation before the court, Sison said the prosecution’s allegations must be tested.

“That prerogative to withdraw an accusation is not the power to suppress its rebuttal on the part of the respondent. The authority to streamline or to achieve speed in a trial is not the authority to diminish due process or to altogether disregard fundamental rules of fairness and the desire to reach a verdict,” said the lead defense counsel.

If there is no appeal and certiorari on the table, what could the bombshells of Duterte’s defense team be?

“As implied by Attorney Sison a while ago, it might move for the dismissal of all articles of impeachment, citing mistrial. Or, as we discussed…. it might move for, or file a motion or demurrer to evidence on article 2, saying that as since the evidence relied upon by the prosecution is anchored solely on the false assumptions of Attorney Alex Cabrera, and the defense might mark it as false assumption, then they will also be moving for that,” lawyer and law professor Maria Lulu Reyes told Rappler.

Cabrera is the financial forensic analyst and prosecution witness who testified that Duterte’s unexplained wealth may reach P1.5 billion.

A demurrer to evidence, mentioned by Reyes, meanwhile, is filed when the defense believes that the prosecution’s evidence is weak enough that they don’t have to present their own. If granted, it will lead to an acquittal.

“So, either way, it’s to dismiss all the articles, not just the three that were mentioned today, but including article 2, the only remaining one,” Reyes added.

If her crystal ball is correct, the Jose Mari Chan Christmas meme, “Ilang tulog na lang…(Just a few more days left)” may be relevant to the impeachment trial. Ready na ba kayo? (Are you all ready?) – Rappler.com