Transactional justice?

Hurry, bargain sale ongoing at Sandigan! - POSTSCRIPT By Federico D. Pascual Jr. | The Philippine Star >> News >> Opinion

Read the link above.

Excerpts:


:TRANSACTIONAL: High crime does pay in the Philippines, and pays handsomely, doesn’t it?

The release by the Sandiganbayan of former military comptroller Carlos Garcia for the price of P60,000 ($1,500) despite very strong evidence of plunder, a non-bailable crime, means to many shocked onlookers that justice in the Philippines is for sale.

The judges and the lawyers aptly called the legal sleight-of-hands “plea bargain.” This sales gambit is a grander-scale version of the same haggling (“tawaran”) ongoing on the sidewalks of Divisoria.

With that scandalously lopsided bargain, the Sandiganbayan and the prosecution service have institutionalized “TRANSANCTIONAL JUSTICE,” an oxymoron but a long-recognized reality in our courts.

But I would hesitate to go along with a proposal to rename the Sandiganbayan to “Sandiganbayad” despite claims that we have the best judges that money can buy.

* * *

UNMASK CONSPIRATORS: Will Garcia now fly to the US, a refuge of thieves and scoundrels, to enjoy with his Stateside family the wealth he had amassed as armed forces comptroller through whose hands passed billions in military transactions?

It is impossible for a solitary general to commit plunder running into hundreds of millions, possibly even billions, without the connivance of superiors and associates.

With the dropping of the plunder charges, who will unmask these co-conspirators who must have pulled strings and paid good money to spring the point man before he squeals on the whole caboodle?

With the utter failure of the justice system, do we now call in the NPA (Nice People Around) to carry out swift alternative justice?

Where I come from, when a farmer’s carabao is stolen, he runs to the NPA. The carabao is recovered and the cattle rustler processed into carabeef. No more plea bargaining, no such thing as a P60,000 bail and all that bull dung.

* * *

LAWFUL BUT AWFUL: Government prosecutors and the justices (a misnomer?) of the Sandiganbayad, I mean Sandiganbayan, will go into that escapist routine of pointing to one another and citing the law (the law of supply and demand?).

But, my gad, what is lawful is not always right. It is sometimes awful. And what the courts dispense is not always justice but only a poor facsimile thereof.

As for the Supreme Court, whatever it does may just be dismissed for being the action of lapdogs appointed by the immediate past president. Alas, that is how deep the incumbent president has ruined respect and fomented contempt for the High Court.

* * * "

"Case closed" vs. "convicted": the difference.

EDITORIAL - Beyond reasonable doubt | The Philippine Star >> News >> Opinion


Opinion
EDITORIAL - Beyond reasonable doubt
The Philippine Star
Updated December 19, 2010 12:00

It may sound like music to the ears of the bereaved Lauro Vizconde, and perhaps the government is onto something new in the celebrated massacre. Malacañang has issued marching orders to several government agencies to solve the murders before the case prescribes in June 2011. That’s all of six months to solve – really and truly, this time – a case of rape with triple homicide perpetrated 19 years ago.

The Supreme Court has said the six men convicted of directly perpetrating the crime, plus a seventh who destroyed evidence at the crime scene, could no longer be prosecuted for the same offense, under the principle of double jeopardy, after their acquittal. The seventh man, former Parañaque policeman Gerardo Biong, in fact finished serving his sentence and was freed last month ahead of the principal convicts. No other personalities have been linked to the brutal murders in the past 19 years. Unless the government has other suspects in mind, a reopening of the case is unlikely to pin down anyone whose guilt can be established in court beyond reasonable doubt.

It would be more useful to review what went wrong in the investigation and prosecution of the case. The Supreme Court, burdened by perceptions that many of its decisions are based on considerations other than law, pointed out the holes in the case. The court reminded the public about the need to prove guilt beyond reasonable doubt even as it stressed that acquittal did not necessarily mean innocence.

The capability to establish guilt became compromised as soon as Biong destroyed evidence at the home of Estrellita Vizconde and her daughters Carmela and Jennifer. DNA tests could have identified the rapist of Carmela, but the evidence taken from her body was lost either by the National Bureau of Investigation or the Parañaque Regional Trial Court.

This is but a high-profile example of the consequences of sloppy police investigation. Recent studies have shown that there is a yawning gap between the number of criminal cases declared solved by law enforcement agencies and the conviction rate. The acquittal of the Vizconde convicts should prompt a redefinition of what law enforcers mean when they declare a case closed. A crime is not solved with the arrest and indictment of a suspect; solution comes only upon conviction. After 19 years, the Vizconde massacre is still waiting to be solved. This case should compel law enforcers to do a better job.

Vizconde massacre; rape with homicide; Webb et al acquitted.

G.R. No. 176389

THE SUPREME COURT HAS ACQUITTED HUBERT WEBB, ET. AL. OF RAPE WITH HOMICIDE AFTER 15 YEARS OF LITIGATION OF THE HOTLY CONTESTED AND HIGHLY POLITICIZED VIZCONDE MASSACRE. HOW DO YOU RESTORE THE LOST FREEDOM OF THE ACCUSED AFTER 15 YEARS OF INCARCERATION? THE ONLY CONSOLATION OF THE ACCUSED IS THAT, DESPITE THE LONG DELAY, THE JUSTICE SYSTEM SEEMS TO HAVE WORKED. AS TO MR. LAURO VIZCONDE, HIS ARDUOUS AND LONELY SEARCH FOR JUSTICE AND FOR THE TRUTH (WHO REALLY RAPED AND KILLED MY FAMILY?) GOES ON, EVEN AS HE SEEMS TO HAVE LOST ALL HOPES IN THE JUSTICE SYSTEM. READ THE FULL TEXT OF THE DECISION OF THE COURT BELOW. FORM YOUR OWN OPINIONS AS INTELLIGENT CITIZENS AND TAXPAYERS.


EN BANC
ANTONIO LEJANO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 176389, Dec. 14, 2010;
PEOPLE OF THE PHILIPPINES vs. WEBB, et. al., G.R. No. 176864

DECISION
ABAD, J.:



Brief Background

On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Parañaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre.



Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio “Tony Boy” Lejano, Artemio “Dong” Ventura, Michael A. Gatchalian, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.[1]



The Regional Trial Court of Parañaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.[2] The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webb’s household, police officer Biong’s former girlfriend, and Lauro G. Vizconde, Estrellita’s husband.



For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webb’s alibi appeared the strongest since he claimed that he was then across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony.



But impressed by Alfaro’s detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaro’s April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings.



In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaro’s testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.[3]



On appeal, the Court of Appeals affirmed the trial court’s decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde.[4] The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister.



On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,[5] hence, the present appeal.



On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmela’s cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence[6] to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case.



Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case.



This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the government’s failure to preserve such vital evidence has resulted in the denial of his right to due process.



Issues Presented



Accused Webb’s motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the government’s failure to produce the semen specimen that the NBI found on Carmela’s cadaver, thus depriving him of evidence that would prove his innocence.



In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are:



1. Whether or not Alfaro’s testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and



2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaro’s testimony that he led the others in committing the crime.



The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission.



The Right to Acquittal
Due to Loss of DNA Evidence



Webb claims, citing Brady v. Maryland,[7] that he is entitled to outright acquittal on the ground of violation of his right to due process given the State’s failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela.



The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmela’s rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.[8] If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did.



Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland[9] that he cites has long be overtaken by the decision in Arizona v. Youngblood,[10] where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test.



For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime.



Parenthetically, after the trial court denied Webb’s application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.[11] They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accused’s lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time.



Now, to the merit of the case.



Alfaro’s Story



Based on the prosecution’s version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio “Dong” Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio “Tony Boy” Lejano, Miguel “Ging” Rodriguez, Hospicio “Pyke” Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Parañaque in January 1991, except Ventura whom she had known earlier in December 1990.



As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmela’s house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Parañaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car.



On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmela’s house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webb’s message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center.



The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her car’s headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived.



Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmela’s boyfriend. Alfaro looked for her group, found them, and relayed Carmela’s instructions to Webb. They then all went back to the Ayala Alabang Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmela’s male companion, Webb’s mood changed for the rest of the evening (“bad trip”).



Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, “Pipilahan natin siya [Carmela] at ako ang mauuna.” Lejano said, “Ako ang susunod” and the others responded “Okay, okay.” They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmela’s house shortly before midnight.



Alfaro parked her car between Vizconde’s house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizconde’s residence to cause a brownout (“Pasabugin kaya natin ang transformer na ito”). But Alfaro shrugged off the idea, telling Fernandez, “Malakas lang ang tama mo.” When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, “O sige, dito lang kami, magbabantay lang kami.”



Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes’ Nissan Sentra and loosened the electric bulb over it (“para daw walang ilaw”). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area.



As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a woman’s voice ask, “Sino yan?” Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, “Okay ba?”



After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a lady’s bag that lay on the dining table. When she asked him what he was looking for, he said: “Ikaw na nga dito, maghanap ka ng susi.” She asked him what key he wanted and he replied: “Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse.” When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key.



Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the master’s bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed.



Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, “Prepare an escape. Aalis na tayo.” Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame.



As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area.



The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the “blaming session” took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmela’s mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, “Bakit naman pati yung bata?” Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone.



At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, “Pera lang ang katapat nyan.” Biong answered, “Okay lang.” Webb spoke to his companions and told them, “We don’t know each other. We haven’t seen each other…baka maulit yan.” Alfaro and Estrada left and they drove to her father’s house.[12]



1. The quality of the witness



Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an “asset,” a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices.



According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an “asset.” She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaro’s tip led to the arrest of the leader of the “Martilyo gang” that killed a police officer. Because of her talent, the task force gave her “very special treatment” and she became its “darling,” allowed the privilege of spending nights in one of the rooms at the NBI offices.



When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus:





ATTY. ONGKIKO:

Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court?



x x x x



A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. That’s what she told me, Your Honor.



ATTY. ONGKIKO:

Q. And what did you say?



x x x x



A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case.



x x x x



Q. Atty. Sacaguing, were you able to interview this alleged witness?



WITNESS SACAGUING:

A. No, sir.



ATTY. ONGKIKO:

Q. Why not?



WITNESS SACAGUING:

A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify.



ATTY. ONGKIKO:

Q. All right, and what happened after that?



WITNESS SACAGUING:

A. She told me, “easy lang kayo, Sir,” if I may quote, “easy lang Sir, huwag kayong…”



COURT:

How was that?



WITNESS SACAGUING:

A. “Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang ‘yan.”



x x x x



ATTY. ONGKIKO:

Q. All right, and what was your reaction when Ms. Alfaro stated that “papapelan ko na lang yan?”



WITNESS SACAGUING:

A. I said, “hindi puwede yan, kasi hindi ka naman eye witness.”



ATTY. ONGKIKO:

Q. And what was the reply of Ms. Alfaro?



WITNESS SACAGUING:

A. Hindi siya nakakibo, until she went away.

(TSN, May 28, 1996, pp. 49-50, 58, 77-79)





Quite significantly, Alfaro never refuted Sacaguing’s above testimony.



2. The suspicious details



But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes.



Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them.



Secondly, the police had arrested some “akyat-bahay” group in Parañaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaro’s NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents.



Not surprisingly, the confessions of some members of the Barroso “akyat bahay” gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following:



a. The Barroso gang members said that they got into Carmela’s house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmela’s boyfriend. Webb had no reason to smash her front door to get to see her.



Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaro’s narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come.



b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso “akyat-bahay” gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key.



Again, this portion of Alfaro’s story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmela’s house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house.



c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked car’s hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing.



Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the car’s hood, using a chair, to turn the light off. But, unlike the Barroso “akyat-bahay” gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the car’s hood and be seen in such an awkward position instead of going straight into the house.



And, thirdly, Alfaro was the NBI’s star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their “darling” of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying.



At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel “Ging” Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaro’s Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: “How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me.” As it turned out, he was not Miguel Rodriguez, the accused in this case.[13]



Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do.



3. The quality of the testimony



There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case.



One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webb’s co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmela’s house, only Webb, Lejano, Ventura, and Alfaro entered the house.



Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaro’s car, which was parked on the street between Carmela’s house and the next. Some of these men sat on top of the car’s lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webb’s companions out on the street did not figure in a planned gang-rape of Carmela.



Two. Ventura, Alfaro’s dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webb’s messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends?



They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an “asset” then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can?



Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmela’s boyfriend. Alfaro’s trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela.



Four. According to Alfaro, when they returned to Carmela’s house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmela’s house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see.



Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, “Sino yan?” On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business.



But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the master’s bedroom. He had apparently stabbed to death Carmela’s mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look.



Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies.



4. The supposed corroborations



Intending to provide corroboration to Alfaro’s testimony, the prosecution presented six additional witnesses:



Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained[14] and the presence of semen in Carmela’s genitalia,[15] indicating that she had been raped.



Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the master’s bedroom, the bag on the dining table, as well as the loud noise emanating from a television set.[16]



White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going.



But White’s testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmela’s house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her.



Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly “cleaned up” Vizconde residence on Webb’s orders. What is more, White did not notice Carmela arrive with her mom before Alfaro’s first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaro’s testimony about the movements of the persons involved.



Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,[17] White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaro’s testimony.

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker.



Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required.[18]



But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressman’s son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitor’s entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webb’s ID but not in recording the visit.



Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents’ house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maid’s quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.[19]



On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony.



Gaviola tried to corroborate Alfaro’'s testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.[20] She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood.



Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muñoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms.



What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep.



And it did not make sense, if Alfaro’s testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit.



Lolita De Birrer was accused Biong’s girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.[21]



The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier?



At most, Birrer’s testimony only established Biong’s theft of certain items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrer’s testimony failed to connect Biong's acts to Webb and the other accused.



Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called “Bagyo,” because he was a Parañaque politician’s son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house.



5. The missing corroboration



There is something truly remarkable about this case: the prosecution’s core theory that Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated!



For instance, normally, if Webb, a Congressman’s son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony.



But, except for Alfaro, the NBI asset, no one among Carmela’s friends or her friends’ friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Parañaque or Makati. Alfaro’s claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmela’s life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal.



What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmela’s lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmela’s relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals.





Webb’s U.S. Alibi



Among the accused, Webb presented the strongest alibi.



a. The travel preparations



Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money.[22] Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets.



Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.[23] On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.[24]



b. The two immigration checks



The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808.[25] Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webb’s visa, stamped, and initialed his passport, and let him pass through.[26] He was listed on the United Airlines Flight’s Passenger Manifest.[27]



On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,[28] the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991,[29] and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.[30]



c. Details of U.S. sojourn



In San Francisco, Webb and his aunt Gloria were met by the latter’s daughter, Maria Teresa Keame, who brought them to Gloria’s house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Gloria’s grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.[31] In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs’ hospitality when she was in the Philippines.[32]



In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.[33] During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler[34] and working at his cousin-in-law’s pest control company.[35] Webb presented the company’s logbook showing the tasks he performed,[36] his paycheck,[37] his ID, and other employment papers. On June 14, 1991 he applied for a driver's license[38] and wrote three letters to his friend Jennifer Cabrera.[39]



On June 28, 1991, Webb’s parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit.[40] On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.[41] Later that day, a visitor at the Brottman’s, Louis Whittacker, saw Webb looking at the plates of his new car.[42] To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle[43] and a car plate “LEW WEBB.”[44] In using the car in the U.S., Webb even received traffic citations.[45]



On June 30, 1991 Webb, again accompanied by his father and Aragon,[46] bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a receipt dated June 30, 1991.[48] On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.[49]



Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez.[50] There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards.[51] In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguez’s house.[52] He left the Rodriguez’s home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.



d. The second immigration checks



As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.[53] Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,[54] certified by Agnes Tabuena[55] confirmed his return trip.



When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webb’s reentry.[56] Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court.



e. Alibi versus positive identification



The trial court and the Court of Appeals are one in rejecting as weak Webb’s alibi. Their reason is uniform: Webb’s alibi cannot stand against Alfaro’s positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webb’s denial and alibi were fabricated.



But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangman’s noose in the face of a witness positively swearing, “I saw him do it.”? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet?



There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, “He did it!” without blinking an eye.



Rather, to be acceptable, the positive identification must meet at least two criteria:



First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold.



And second, the witness’ story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims.



Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.



She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecution’s worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI.



And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly—just so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the car’s hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front door—just so to explain the darkened light and foot prints on the car hood.



Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaro’s story that she agreed to serve as Webb’s messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity.



To provide basis for Webb’s outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable.



Ultimately, Alfaro’s quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi.



f. A documented alibi



To establish alibi, the accused must prove by positive, clear, and satisfactory evidence[57] that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.[58]



The courts below held that, despite his evidence, Webb was actually in Parañaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm.



If one is cynical about the Philippine system, he could probably claim that Webb, with his father’s connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines’ passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigration’s record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions.



The Court of Appeals rejected the evidence of Webb’s passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,[59] the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court.



The U.S. Immigration certification and the computer print-out of Webb’s arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webb’s passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.[60]



The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webb’s passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.[61]



The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus:



While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding “no evidence of lawful admission of Webb,” this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request.



The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was “not exhaustive and did not reflect all available information.” Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that “the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..[62]





The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.



If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webb’s passport and the certifications of the Philippine and U.S.’ immigration services regarding his travel to the U.S. and back. The prosecution’s rebuttal evidence is the fear of the unknown that it planted in the lower court’s minds.



7. Effect of Webb’s alibi to others



Webb’s documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaro’s testimony will not hold together. Webb’s participation is the anchor of Alfaro’s story. Without it, the evidence against the others must necessarily fall.



CONCLUSION



In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one’s inner being, like a piece of meat lodged immovable between teeth.



Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce?



WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause.



Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision.



SO ORDERED.

Webb case; libel; proper respondents (2003)

Sps Webb vs Sec of Justice : 139120 : July 31, 2003 : J. Carpio Morales : Third Division

[G.R. No. 139120. July 31, 2003]
SPS. FREDDIE & ELIZABETH WEBB, et. al. vs. THE SECRETARY OF JUSTICE, et. al..

D E C I S I O N
CARPIO-MORALES, J.:


x x x.

At the time petitioners’ petition for certiorari was filed before the appellate court and even up to the rendition of its assailed Resolution on February 8, 1999, the rule in force was above-quoted Rule 65, Sec. 4. The petition at bar would then fail. The rule, however, was amended during the pendency of the present case before this Court by A.M. No. 00-2-03-SC (Further Amending Section 4, Rule 65 of the 1997 Rules of Civil Procedure) which took effect on September 1, 2000. The 60-day period to file a petition for certiorari is now reckoned from date of receipt of the notice of denial of a motion for reconsideration or new trial if one was filed.[14]

The next “logical step” to take then would be for this Court to direct the appellate court to resolve the petition for certiorari on the merits. Such step, however, would unduly prolong its disposition, hence, this Court shall now resolve the same.[15]

Decisions or resolutions of prosecutors are subject to appeal to the Secretary of Justice who, under the Revised Administrative Code, exercises the power of direct control and supervision over said prosecutors, hence, has power of review over their resolutions. He may thus affirm, nullify, reverse or modify their rulings.[16]

The power of review of the Secretary of Justice is also recognized under Section 4, Rule 112 of the Revised Rules of Court:

Sec. 4. Resolution of Investigating Prosecutor and its review. — x x x x If upon petition by a proper party under such Rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties x x x x

Once a complaint or information is filed in court, however, as in the present case, any disposition of the case — be it dismissal of the case, or conviction or acquittal of the accused — rests on the sound discretion of the court. For although the prosecutor retains the direction and control of the prosecution of criminal cases even while the case is already in court, he cannot impose his opinion on the trial court[17] which is “the final arbiter on whether or not to proceed with the case.”

As a general rule, the determination of probable cause is not lodged with this Court. Our duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions[18] to this rule, none of which are obtaining in the case now before us x x x x Since the Information has already been filed, the final arbiter on whether or not to proceed with the case is the Regional Trial Court as earlier discussed.[19] (Underscoring supplied)

In the present case, there is no showing that the public prosecutor has filed a motion to withdraw the informations before the trial court. The trial judge has thus not been afforded the chance to pass upon any such motion to determine whether probable cause indeed does or does not lie against the accused-non-members of the PDI Board.

With respect to the affirmance by the Secretary of Justice of the exclusion of the respondent-members of the PDI Board of Directors in the information for libel: The records on hand do not show that petitioners have come up with prima facie evidence that respondent-members of the Board actually caused or participated in the publication, or were “in some way directly responsible for the writing, editing or publishing” of the alleged libelous articles.[20] It is on this score that this Court finds that the affirmance by the Secretary of Justice of the dismissal of the complaint against the respondent-members of the PDI Board was not attended with grave abuse of discretion.

x x x.

Webb case; deposition denied (1999)

People vs Webb : 132577 : August 17, 1999 : J. Ynares-Santiago : First Division



[G.R. No. 132577. August 17, 1999]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HUBERT JEFFREY P. WEBB, respondent.

D E C I S I O N
YNARES-SANTIAGO, J.:


x x x.


As defined, a deposition is -

"The testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution. A pretrial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the court room, usually in one of the lawyer’s offices. A transcript - word for word account - is made of the deposition. Testimony of [a] witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories x x x.”[21]

and the purposes of taking depositions are to: 1.] Give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; 2.] Provide an effective means of detecting and exposing false, fraudulent claims and defenses; 3.] Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; 4.] Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; 5.]Expedite litigation; 6.] Safeguard against surprise; 7.] Prevent delay; 8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both preparation and trial.[22] As can be gleaned from the foregoing, a deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondent’s main defense in the criminal proceedings against him in the court below - states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion.[23]

It needs to be stressed that the only reason of respondent for seeking the deposition of the foreign witnesses is “to foreclose any objection and/or rejection of, as the case may be, the admissibility of Defense Exhibits ‘218’ and ‘219’.” This issue has, however, long been rendered moot and academic by the admission of the aforementioned documentary exhibits by the trial court in its order dated July 10, 1998.[24]

In fact, a circumspect scrutiny of the record discloses that the evidence to be obtained through the deposition-taking would be superfluous or corroborative at best. A careful examination of Exhibits “218” and “219” readily shows that these are of the same species of documents which have been previously introduced and admitted into evidence by the trial court in its order dated July 18, 1997 which We noted in Webb, et al. v. People of the Philippines, et al.[25] wherein We pointed out, among others, “[t]hat respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that ‘the defects in (their) admissibility have been cured though the introduction of additional evidence during the trial on the merits’.”[26]

Indeed, a comparison of Exhibit “218-A” which is a U.S. Department of State Certification issued by Joan C. Hampton, Assistant Authenticating Officer of the said agency, for and in the name of Madeleine K. Albright, stating that the documents annexed thereto were issued by the U.S. Department of Justice as shown by seal embossed thereon,[27] with other exhibits previously offered as evidence reveals that they are of the same nature as Exhibits “42-H”[28] and “42-M.”[29] The only difference in the documents lies in the fact that Exhibit “218-A” was signed by Joan C. Hampton for and in behalf of the incumbent Secretary of State, Madeleine K. Albright whereas, Exhibits “42-H” and “42-M” were signed by Authenticating Officer Annie R. Maddux for and in behalf of former Secretary of State Warren Christopher.[30]

A comparison of Exhibit “218-B”[31] with the other documentary exhibits offered by respondent, likewise discloses that its contents are the same as Exhibits “42-I”[32] and “42-N.”[33] The only difference in the three exhibits, which are actually standard issue certification forms issued by the U.S. Department of Justice with blanks to be filled up, is that Exhibit “218-B” is dated February 5, 1997 and signed by one of the U.S. Attorney General’s several Deputy Assistant Attorneys for Administration for and in her behalf, while Exhibits “42-I” and “42-N” are both dated September 21, 1995 with another of the said deputies signing both documents.[34]

Still comparing respondent’s Exhibit “218-F,”[35] which is likewise a standard issue U.S. Department of Justice Certification Form, with other documents previously introduced as evidence reveals that it is the same as Exhibits “39-D”[36] and “42-C.”[37] The only differences in these documents are that Exhibit “218-F” is dated October 13, 1995 and is signed by Debora A. Farmer while Exhibits "-“39-D” and “42-C” are both dated August 31, 1995 and signed by Cecil G. Christian, Jr., Assistant Commissioner, Officer of Records, INS.[38]

Still further scrutinizing and comparing respondent’s Exhibit “218-G”[39] which was also introduced and admitted into evidence as Defense Exhibit “207-B”[40] shows that the document has been earlier introduced and admitted into evidence by the trial court an astounding seven (7) times, particularly as Exhibits “34-A”, “35-F”, “39-E”, “42-D”, “42-P”, “50” and “50-F.”[41] The only difference in these documents is that they were printed on different dates. Specifically, Exhibits “218-G” as with Exhibits “34-A”, “35-F”, “50”, and “52-F” were printed out on October 26, 1995[42] whereas Exhibit “207-B” as with Exhibits “39-E”, “42-D” and “42-F” were printed out on August 31, 1995.[43]

In fact, the records show that respondent’s: a.] application for Non-Commercial Driver’s License; b.] Documentary records based on Clet’s Database Response; c.] Computer-generated thumb-print; d.] Documentary records based on still another Clet’s Database Response, and e.] The Certification issued by one Frank Zolin, Director of the State of California’s Department of Motor Vehicles, were already introduced and admitted into evidence as Defense Exhibits “66-J”, “66-K”, “66-H”, “66-I” and “66-L”, respectively.[44]

It need not be overemphasized that the foregoing factual circumstances only serves to underscore the immutable fact that the depositions proposed to be taken from the five U.S. based witnesses would be merely corroborative or cumulative in nature and in denying respondent’s motion to take them, the trial court was but exercising its judgment on what it perceived to be a superfluous exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of the evidence already on record. In this regard, it bears stressing that under Section 6, Rule 113 of the Revised Rules of Court:

“SEC. 6. Power of the court to stop further evidence. - The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution.” (emphasis and italics supplied.)

Needless to state, the trial court can not be faulted with lack of caution in denying respondent’s motion considering that under the prevailing facts of the case, respondent had more than ample opportunity to adduce evidence in his defense. Certainly, a party can not feign denial of due process where he had the opportunity to present his side.[45] It must be borne in mind in this regard that due process is not a monopoly of the defense. Indeed, the State is entitled to due process as much as the accused.[46] Furthermore, while a litigation is not a game of technicalities, it is a truism that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.[47]

The use of discovery procedures is directed to the sound discretion of the trial judge.[48] The deposition taking can not be based nor can it be denied on flimsy reasons.[49] Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. There is no indication in this case that in denying the motion of respondent-accused, the trial judge acted in a biased, arbitrary, capricious or oppressive manner. Grave abuse of discretion “x x x implies such capricious, and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act all in contemplation of law.”[50]

“Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess or jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be a capricious, arbitrary and whimsical exercise of power for it to prosper.”[51]

“To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but generally refers to ‘capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.’

“It has been held, however, that no grave abuse of discretion may be attributed to a court simply because of its alleged misappreciation of facts and evidence. A writ of certiorari may not be used to correct a lower tribunal's evaluation of the evidence and factual findings. In other words, it is not a remedy for mere errors of judgment, which are correctible by an appeal or a petition for review under Rule 45 of the Rules of Court.

“In fine, certiorari will issue only to correct errors of jurisdiction, not errors of procedure or mistakes in the findings or conclusions of the lower court. As long as a court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by special civil action for certiorari.”[52]

Whether or not the respondent-accused has been given ample opportunity to prove his innocence and whether or not a further prolongation of proceedings would be dilatory is addressed, in the first instance, to the sound discretion of the trial judge. If there has been no grave abuse of discretion, only after conviction may this Court examine such matters further. It is pointed out that the defense has already presented at least fifty-seven (57) witnesses and four hundred sixty-four (464) documentary exhibits, many of them of the exact nature as those to be produced or testified to by the proposed foreign deponents. Under the circumstances, We sustain the proposition that the trial judge commits no grave abuse of discretion if she decides that the evidence on the matter sought to be proved in the United States could not possibly add anything substantial to the defense evidence involved. There is no showing or allegation that the American public officers and the bicycle store owner can identify respondent Hubert Webb as the very person mentioned in the public and private documents. Neither is it shown in this petition that they know, of their own personal knowledge, a person whom they can identify as the respondent-accused who was actually present in the United States and not in the Philippines on the specified dates.

x x x.

Webb case; inhibition (1997)

Webb vs People : 127262 : July 24, 1997 : J. Puno : Second Division

Today the hottest news item was the decision of the Supreme Court acquitting Hubert Webb, et. al. (rape with homicide) after 15 long years of painful and costly litigation. I shall digest the decision in due time once it is published by the Court. Anyway, in 1997, the Court denied the petition of Webb seeking the inhibition of the trial judge, Amelita Tolentino. See the salient parts of the decision below. The judge, after a full-blown and much-publicized trial, convicted all of the accused. Riding on her popularity she thereafter sought and was given a promotion to the Court of the Appeals, where she serves up to now. If I am not mistaken she has attempted to seek an appointment to the Supreme Court but did not make it. The question now is this: In the silence of her conscience, and in the face of the rejection by the Supreme Court of her wrong decision which has deprived the accused of their precious freedom for 15 years now, what does she feel in the innermost recesses of her heart? Any remorse? Resentment? Shame? Guilt?

G.R. No. 127262. July 24, 1997
HUBERT WEBB, et al vs. PEOPLE OF THE PHILIPPINES, et. al..

D E C I S I O N
PUNO, J.:


x x x.

On June 21, 1996, the Court of Appeals rendered its Decision on the various petitions and supplemental petitions. It reversed respondent judge's ruling refusing to admit Alfaro's April 28 affidavit but denied all the other reliefs prayed for by petitioners.[16] It also denied petitioners' motion for reconsideration in a resolution dated November 15, 1996.[17]

On December 12, 1996, petitioners filed the present petition contending:

I

The Court of Appeals erred in declaring that no sufficient ground exists for the disqualification of the respondent judge.

A. Respondent judge has consistently and repeatedly shown bias and hostility against petitioners.

B. The rejection of the 132 of 142 exhibits not only paved the way for the denial of bail but also sets irreversibly the eventual conviction of all the accused.

C. The reported trip to the Vizconde residence by the respondent judge exposes her propensity to consort with the complainant on the pending issues.

II

The Court of Appeals erred in not honoring that the right to a fair trial requires that the case be tried by an impartial judge.

On February 5, 1997, petitioners filed a supplemental petition. It alleged, among others, that during the trial on the merits, respondent judge allowed prosecution witness Atty. Pedro Rivera to testify on the character of the accused although the defense had not put his character in issue; that respondent judge disallowed the defense to impeach the credibility of Atty. Rivera by the presentation of an earlier statement executed by him because such statement was immaterial; and that respondent judge struck off from the record the proffer of oral evidence made by defense counsel Atty. Vitaliano Aguirre after ruling that the proffer was improper on cross-examination.[18]

The core issue is whether respondent judge should inhibit herself from hearing Criminal Case No. 95-404 on the ground of bias and prejudice.

We rule in the negative.

The Bill of Rights guarantees that "(n)o person shall be held to answer for a criminal offense without due process of law."[19] A critical component of due process is a hearing before an impartial and disinterested tribunal. We have ingrained the jurisprudence that every litigant is entitled to nothing less than the cold neutrality of an impartial judge for all the other elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.[20] Hence, the Rules of Court allows a judge to voluntarily inhibit himself from hearing a case for "just or valid reasons" other than those referring to his pecuniary interest, relation, previous connection, or previous rulings or decisions. Section 1 Rule 137 of the Revised Rules of Court states:

SECTION 1. Disqualification of judges. -- No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

Under the second paragraph, a party has the right to seek the inhibition or disqualification of a judge who does not appear to be wholly free, disinterested, impartial and independent in handling the case. This right must be weighed with the duty of a judge to decide cases without fear of repression. Hence, to disqualify a judge on the ground of bias and prejudice the movant must prove the same by clear and convincing evidence. This is a heavy burden and petitioners failed to discharge their burden of proof.

To prove bias and prejudice on the part of respondent judge, petitioners harp on the alleged adverse and erroneous rulings of respondent judge on their various motions. By themselves, however, they do not sufficiently prove bias and prejudice to disqualify respondent judge. To be disqualifying, the bias and prejudice must be shown to have stemmed from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Opinions formed in the course of judicial proceedings, although erroneous, as long as they are based on the evidence presented and conduct observed by the judge, do not prove personal bias or prejudice on the part of the judge.[21] As a general rule, repeated rulings against a litigant, no matter how erroneous and vigorously and consistently expressed, are not a basis for disqualification of a judge on grounds of bias and prejudice.[22] Extrinsic evidence is required to establish bias, bad faith, malice or corrupt purpose, in addition to the palpable error which may be inferred from the decision or order itself. Although the decision may seem so erroneous as to raise doubts concerning a judge's integrity, absent extrinsic evidence, the decision itself would be insufficient to establish a case against the judge.[23] The only exception to the rule is when the error is so gross and patent as to produce an ineluctable inference of bad faith or malice.

A perusal of the records will reveal that petitioners failed to adduce any extrinsic evidence to prove that respondent judge was motivated by malice or bad faith in issuing the assailed rulings. Petitioners simply lean on the alleged series of adverse rulings of the respondent judge which they characterized as palpable errors. This is not enough. We note that respondent judge's rulings resolving the various motions filed by petitioners were all made after considering the arguments raised by all the parties. It is true that the respondent judge erred in some of her rulings such as her rejection of petitioners' one hundred thirty two (132) pieces of evidence. It appears, however, that respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that "the defects in (their) admissibility have been cured through the introduction of additional evidence during the trial on the merits."[24] This correction diminishes the strength of petitioners' charge that respondent judge is hopelessly biased against them. To be sure, the respondent judge did not score a complete cipher in her rulings against the petitioners. Just last June 11, 1997, the Third Division of this Court dismissed an administrative complaint against the respondent judge on the ground that "x x x it is within the respondent judge's right to conduct an ocular inspection since it is an exercise of her judicial prerogative x x x."[25] There is still another reason why we should observe caution in disqualifying respondent judge. The trial of the petitioners is about to end and to assign a new judge to determine the guilt or innocence of petitioners will not be for the best interest of justice. The records of the case at bar run into volumes. These voluminous records cannot capture in print the complete credibility of witnesses when they testified in court. As the respondent judge observed the demeanor of witnesses while in the witness chair, she is in the best position to calibrate their credibility. The task of evaluating the credibility of witnesses includes interpreting their body language and their meaningful nuances are not expressed in the transcripts of their testimonies.

We hasten to stress that a party aggrieved by erroneous interlocutory rulings in the course of a trial is not without remedy. The range of remedy is provided in our Rules of Court and we need not make an elongated discourse on the subject. But certainly, the remedy for erroneous rulings, absent any extrinsic evidence of malice or bad faith, is not the outright disqualification of the judge. For there is yet to come a judge with the omniscience to issue rulings that are always infallible. The courts will close shop if we disqualify judges who err for we all err.

We again remind respondent judge of our counsel in the first Webb case[26] "x x x that our ability to dispense impartial justice is an issue in every trial, and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done - and that is the only way for the judiciary to get an acquittal from the bar of public opinion."

x x x.