Using criminals as witnesses

President Duterte and his controversial justice secretary, Vitaliano Aguirre II, are so confident the government has built foolproof cases against archcritic and incumbent senator Leila de Lima that they expect to see her locked up in jail any time soon.

For the sake of the credibility of our justice system—or what remains of it—I hope they are right. I hope they have the objective evidence to corroborate the testimonies of the chorus of convicted criminals who have been recruited as witnesses for the sole purpose of pinning down the senator. If they don’t, then they would have knowingly shredded the institutional integrity of the whole justice system in the vain hope of silencing a sworn critic of the administration. They would have set a dangerous record in the use of criminal convicts as political weapons.

The three cases that were filed the other day by a special panel of prosecutors from the Department of Justice all pertain to Senator De Lima’s alleged toleration of the supposed drug trade in the national penitentiary in Muntinlupa in exchange for election campaign funds. Two of these were filed at the Muntinlupa City Regional Trial Court (rather than the Sandiganbayan, which is explicitly mandated to decide cases involving public officials). A third—for alleged violations of the Anti-Graft and Corrupt Practices Act and the Code of Conduct and Ethical Standard for Public Officials and Employees—was forwarded to the Office of the Ombudsman for action.

For the purpose of this column, what is remarkable is this: The same DOJ resolution carries a request for the dismissal of the illegal drugs cases filed against Herbert Colanggo, Engelberto Acenas Durano, Vicente Sy, Jojo Baligad, and Wu Tuan Yuan alias Peter Co, “since they will be utilized as prosecution witnesses.”

We may be familiar with some of these names. We first saw them up close during the nationally televised House hearings on the Bilibid drug trade. Glib and often cocky, these convicts were let out on prison passes so they could serve as legislative resource persons. Gamely playing their parts in what seemed like a crudely written script, they

regaled the assembled legislators with endless tales of survival and intrigue inside the prison system. And, each time they were prompted to do so, they dutifully dragged the name of Senator De Lima into every nefarious activity in which they were engaged.

Without corroborating facts, no reasonable person would assign evidentiary value to their statements. As prisoners looking for a way to negotiate their liberty, shorten their jail terms, or earn privileges while in prison, these men would have said anything that those who had the power over their fates ordered them to say. Their use as state’s witnesses is a dangerous maneuver that is done only to get at the truth, rather than to get someone.

Judge Stephen S. Trott, senior circuit judge of the US Court of Appeals for the 9th Circuit, sums up the lessons he has learned about “cooperating criminals” from his

40-year experience in the American justice system. It would do well for the DOJ prosecutors who have taken on the unpleasant
task of indicting the former head of their office to heed the wise words of this venerable magistrate. Here’s the link to Judge Trott’s lecture, “The use of a criminal as a witness: A special problem.”

First: “Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law…. Many are outright conscienceless sociopaths to whom ‘truth’ is a wholly meaningless concept. To some, ‘conning’ people is a way of life. Others are just basically unstable people.’”

Second: “Ordinary decent people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell out’ and become prosecution witnesses. Jurors suspect their motives from the moment they hear about them in a case, and they frequently disregard their testimony altogether as highly untrustworthy and unreliable, openly expressing disgust with the prosecution for making deals with such ‘scum.’”

We don’t have the jury system in this country, of course. I wish we did. But, having been treated to a preview of the kind of statements that the deployed Bilibid convicts are likely to make before the courts, the public would be highly sensitive to any attempt to treat these testimonies as though they could stand on their own. The first problem of the government prosecutors is precisely the credibility of their prime witnesses. In a case that, by itself, is already heavily tainted by the color of political persecution, the choice of convicted criminals as witnesses for the state is reckless and pathetic.

In a functioning justice system, the defense would easily enjoy the upper hand in such cases. As Judge Trott puts it, “[I]n the hands of a skillful defense tactician, all the liabilities and the unseverable baggage that such a witness brings to your case, along with the ‘confession’ or the revelations, become the elements of reasonable doubt the defense is looking for and the brush with which the rest of your case is then tarred.” In short, the prosecution would have a hard time proving its case.

But, perhaps, that’s not the main goal here. The object of the entire exercise could simply be to arrest Senator De Lima, put her in jail, keep her there indefinitely as the case drags on, and teach her a lesson. What lesson? In chief presidential legal counsel Salvador Panelo’s words, she will experience what she made Gloria Arroyo experience: “Matitikman niya na iyong pinatikim niya kay Arroyo.”