A sample pleading of our law office containing jurisprudence on the legal effects of the gross negligence/recklessness of defense counsel vis-vis the due process and equal protection rights of the accused.
(1) FOR NEW TRIAL/RECONSIDERATION;
OR, IN THE ALTERNATIVE,
(2) TO REOPEN THE CASE
X x x.
I. GROUNDS FOR THE OMNIBUS MOTION
The accused seeks a RECONSIDERATION of the Decision on the following grounds:
1. The prosecution evidence has failed to prove the guilt of the accused beyond reasonable doubt.
2. With all due respect, the Honorable Court has grossly misappreciated and misinterpreted the evidence on record resulting in a grave miscarriage of justice.
3. The former defense counsel, Atty. Xxx Xxx, had committed gross negligence resulting in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the accused to:
(a) procedural and substantive due process of law,
(b) to equal protection of the law, and
(c) to competent and independent counsel,
all of which warrants a RE-OPENING of the case to enable the accused, in the interest of truth and justice, to present crucial exculpating evidence discussed hereinbelow, which evidence, if admitted, would result in his ACQUITTAL.
In the alternative, the accused seeks the RE-OPENING of the instant case to enable him and his newly retained counsel to present crucial exculpating evidence which his former counsel, by his gross negligence, failed to introduce in his defense to prove his innocence, i.e., the Mission Order (Appointment), Memorandum Receipt, and other related documents, which are discussed hereinbelow, issued by the Intelligence Service of the Armed Forces of the Philippines (ISAFP), of which he is a duly appointed Confidential Agent (CA) with the official authority to possess a firearm and to carry the same outside his residence in such official capacity.
X x x.
A. – 1. Jurisprudence. - In other words, when there is equilibrium in the evidence presented by both sides, the CONSTITUTIONAL PRESUMPTION OF INNOCENCE should tilt the balance of the scale in favor of the acquittal of the accused, for, in such a situation, the offense has not been proven beyond reasonable doubt, which is the quantum of evidence required to convict an accused.
Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. [People v. Gargar, 300 SCRA 542 (1998). See also: En Banc, Justice Mendoza, THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR., accused-appellant, G.R. No. 136267. July 10, 2001].
Only by proof beyond reasonable doubt, which requires moral certainty, may the presumption of innocence be overcome (People vs. Custodio, 47 SCRA 289 [ 1972]).
Moral certainty has been defined as "a certainty that convinces and satisfies the reason and conscience of those who are to act upon it" (People vs. Lavarias, 23 SCRA 1301 ).
Absent the moral certainty that accused-appellant caused the death of the victim, acquittal perforce follows.
Proof beyond reasonable doubt is needed to overcome the presumption of Innocence (People vs. Reyes, 60 SCRA 126 ).
Accused-appellant’s guilt must be proved beyond reasonable doubt (People vs. Maliwanag, 58 SCRA 323 [ 1974]); otherwise, the Court would be left without any other recourse but to rule for acquittal. Courts should be guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit. [En Banc, Melo, People v. Tagudar [G.R. No. 130588. June 8, 2000].
A. Gross Negligence of the Former Defense Counsel. - The accused respectfully submits that his former defense counsel, Atty. Xxx Xxx, had committed gross negligence resulting in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the accused to: (a) procedural and substantive due process of law, (b) to equal protection of the law, and (c) to competent and independent counsel -- all of which warrants a RE-OPENING of the case to enable the accused, in the interest of truth and justice, to present crucial exculpating evidence discussed hereinbelow, which evidence, if admitted, would result in his ACQUITTAL.
The gross negligence and failure of the former counsel for the accused to introduce and present the evidence referred to in Pars. 3.3., supra, has resulted in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the accused to: (a) procedural and substantive due process of law, (b) to equal protection of the law, and (c) to competent and independent counsel -- all of which warrants a RE-OPENING of the case to enable the accused, in the interest of truth and justice, to present crucial exculpating evidence discussed hereinbelow, which evidence, if admitted, would result in his ACQUITTAL, to wit:
X x x.
B-1. JURISPRUDENCE. - The accused is aware of the jurisprudence that, as a general rule, “a client is bound by the mistakes of his counsel”. (Villa Rhecar Bus vs. Dela Cruz, No. L-78936, January 7, 1988, 157 SCRA 13).
However, jurisprudence allows an exception, that it, “x x x when the negligence of the counsel is so gross, reckless and inexcusable that the client is deprived of his day in court”.
In such instance, “the remedy is to reopen the case and allow the party who was denied his day in court to adduce evidence”. (Producers Bank of the Philippines vs. Court of Appeals, G.R. No. 126620, April 17, 2002, 381 SCRA 185, 192).
Further, in this regard, the accused hereby quotes extensively the ruling of the Supreme Court in the case of CALLANGAN VS. PEOPLE, G.R. NO. 153414, , June 27, 2006,where it held, inter alia, that: “The rule that the negligence of counsel binds the client admits of exceptions:
(1) where reckless or gross negligence of counsel deprives the client of due process of law,
(2) when its application will result in outright deprivation of the client’s liberty or property or
(3) where the interests of justice so require.”
“x x x.
However, in view of the circumstances of this case, outright deprivation of liberty will be the consequence of petitioner’s criminal conviction based solely on the evidence for the prosecution. Thus, to prevent a miscarriage of justice and to give meaning to the due process clause of the Constitution, the Court deems it wise to allow petitioner to present evidence in her defense.
The rule that the negligence of counsel binds the client admits of exceptions. The recognized exceptions are: (1) where reckless or gross negligence of counsel deprives the client of due process of law, (2) when its application will result in outright deprivation of the client’s liberty or property or (3) where the interests of justice so require. In such cases, courts must step in and accord relief to a party-litigant.
The omissions of petitioner’s counsel amounted to an abandonment or total disregard of her case. They show conscious indifference to or utter disregard of the possible repercussions to his client. Thus, the chronic inaction of petitioner’s counsel on important incidents and stages of the criminal proceedings constituted gross negligence.
X x x.
In criminal cases, the right of the accused to be assisted by counsel is immutable. Otherwise, there will be a grave denial of due process. The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned.
In People v. Ferrer, the essence of the right to counsel was enunciated:
The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation. (Emphasis supplied)
Petitioner was accorded grossly insufficient legal assistance by a counsel who did not devote himself to the defense of her cause. Counsel’s utter lack of action after the prosecution rested its case revealed an extreme shortcoming on his part. Such inaction definitely proved infidelity to and abandonment of petitioner’s cause.
Considering that this case involved personal liberty, the gross negligence of counsel shocks our sense of justice. It should not be allowed to prejudice petitioner’s constitutional right to be heard. The Court’s pronouncement in Reyes v. Court of Appeals, applies strongly in this case:
The judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the prosecution just because the presentation of the defense evidence had been barred by technicality. Rigid application of rules must yield to the duty of
courts to render justice where justice is due – to secure to every individual all possible legal means to prove his innocence of a crime with which he or she might be charged.
Otherwise, the likelihood of convicting and punishing an innocent man and of inflicting a serious injustice on him becomes great.
In Reyes, the Court, after finding that the conviction of Zenaida Reyes had been caused by the gross negligence of her counsel, reconsidered its earlier resolution which denied the petition for review of the decision of the Court of Appeals affirming her conviction. The case was remanded to the trial court for the purpose of allowing Reyes to present evidence in her defense.
In De Guzman v. Sandiganbayan, the Court also set aside its decision affirming Domingo de Guzman’s conviction by the Sandiganbayan, after being shown that his conviction had been brought about by his counsel’s gross ignorance of law and procedure. The case was then ordered remanded to the Sandiganbayan for reception and appreciation of petitioner’s evidence.
Therefore, in consonance with the demands of justice and to prevent any outright deprivation of liberty, the Court deems it best to give petitioner a chance to present evidence in her defense. The case should be remanded to the MTC for acceptance and appraisal of petitioner’s evidence.
Petitioner does not seek her exoneration but the opportunity to present evidence in her defense. Considering the gross negligence of her counsel on whom she reposed her trust to protect her rights, justice demands that she be given that chance.
In sum, it is better to allow petitioner another occasion to present her evidence than to let her conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121, Section 6 of the Rules of Court, the evidence of the prosecution shall be understood preserved, subject to the right of the prosecution to supplement it and/or to rebut the evidence which petitioner may present.
X x x.”
B. RULES OF COURT. – Sec. 24, Rule 119 of the Rules of Criminal Procedure provides that “at any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice”.
The proceedings shall be terminated “within thirty (30) days from the order granting it.”
In the case at bar, the decision therein has not yet become final and executory as of the filing of this omnibus motion.
WHEREFORE, premises considered, it is respectfully prayed that the Decision, dated xxx and promulgated on xxx, be RECONSIDERED AND SET ASIDE and a new one be entered ACQUITTING the accused; or, in the alternative, that an order be issued RE-OPENING the trial of the instant case, as explained above, to enable the accused to introduce crucial exculpating evidence that his former counsel had grossly neglected to introduce.
X x x.