Shaken-baby syndrome and the Supreme Court. - Slate Magazine

Shaken-baby syndrome and the Supreme Court. - Slate Magazine

"x x x.

In 1996, when he was seven weeks old, Etzel Glass died during the night. His mother, Tomeka, had put him to sleep on a sofa in a room with Shirley Ree Smith, Etzel’s grandmother. Smith was helping Tomeka raise Etzel and two other children, who were also sleeping in the room with her. There was no indication that she’d been anything but loving toward the kids at any time. When Smith woke up and found Etzel limp, she ran with him to his mother’s room next door, saying she thought he’d fallen off the sofa. At first, the doctors who examined Etzel said he’d died of sudden infant death syndrome—no one’s fault. But the coroner found the cause of death to be shaken-baby syndrome, and prosecutors decided that Shirley Ree Smith had done the shaking.

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This was not a typical shaken-baby case. The standard diagnosis for shaken-baby syndrome includes subdural bleeding, retinal bleeding, and brain swelling. In the cases that are easier to classify, there is also injury to the neck from shaking, or there are fractures, bruises, or cuts. In the harder cases, there are no external signs of injury. Etzel’s case involved only “minimal” subdural hemorrhaging. There was no retinal bleeding and no brain swelling, and no fractures or abrasions.

But there was one more supposed piece of evidence against Shirley Ree Smith. According to the social worker who interviewed her, Smith said that when Etzel didn’t respond to her touch when she thought he was sleeping, she gave him “a little shake, a little jostle.” Smith then said something like “Oh my God. Did I do it? Did I do it? Oh my God.” This was enough for the prosecutors and the jury. She was convicted and sentenced to 15 years to life.

I’d like to think that Shirley Ree Smith would not be prosecuted today, though I’m not certain of it. The science underlying shaken-baby prosecutions is shifting, with critics questioning whether alternate explanations for a baby’s death are always adequately explored. But a new consensus—legal or scientific—hasn’t yet emerged yet from the bitter fight, in some cases, over the diagnosis.

Smith’s case is truly an outlier. Since Etzel didn’t have the typical symptoms, the prosecution’s medical witnesses went out on a limb, testifying that the death was caused by a shearing or tearing of the brain stem even though no doctor located any such shearing or tear. On appeal, Smith argued that there wasn’t enough evidence for a jury to find her guilty. But shaken-baby convictions aren’t easy to undo. For the California appeals court, it was enough that the prosecutors had medical experts on their side. The California Supreme Court declined to review the case. So Smith turned to the federal courts. At this point, the Anti-terrorism and Effective Death Penalty Act kicks in. This is perhaps my least-favorite law. AEDPA tells federal courts that they can’t overturn state courts except in a narrow set of circumstances: If a conviction is contrary to or unreasonably applies clearly established federal law, or if it’s based on an unreasonable determination of the facts. AEDPA is a straitjacket. The federal courts are supposed to put it on and quit worrying about whether innocent people have been put in prison.

A panel of judges for the U.S. Court of Appeals for the 9th Circuit refused to do that. They looked at the medical testimony against Shirley Ree Smith and how badly it holds up to the light of current knowledge, and they said that Smith had spent enough years in prison.

Normally, that would be that. AEDPA or no AEDPA, the Supreme Court doesn’t usually reach out and grab sad, fact-bound cases like this one. But liberal 9th Circuit judges are a thorn in the side of the Supreme Court’s conservative justices. Last month, after twice sending the 9th Circuit pointed warnings about this case, the Supreme Court reversed the circuit court’s decision. The majority’s brief and unsigned opinion concedes that “doubts about whether Smith is in fact guilty are understandable.” But according to six justices, it’s not the 9th Circuit’s job to do anything about that.

Justice Ruth Bader Ginsburg dissented, with Stephen Breyer and Sonia Sotomayor. Ginsburg gives all the reasons to doubt the medical testimony against Smith. She does a great service by laying out the growing skepticism among a minority of doctors about the validity of diagnosing shaken-baby syndrome without any evidence at all of external injury. “What is now known about the SBS hypotheses seems to me worthy of considerable weight in the discretionary decision whether to take up this tragic case,” Ginsburg writes.

As for the weight to accord Smith’s supposed confession, I defer to an amazing opinionpublished last week by Judge Richard Posner. In this case, a daycare provider named Rick Aleman was charged for shaking an 11-month-old baby who collapsed in his care. When the police told him that three doctors said that Aleman’s shaking must have caused the injury, he said “I know in my heart that if the only way to cause [the injuries] is to shake that baby, then, when I shook that baby, I hurt that baby.” It turned out that the police were lying. And that the baby’s mother had a record of violence and crime. And that the cop who lied apparently wanted to date her. And that the baby had been sluggish and lethargic for days before he came to Aleman’s house.

The case against Aleman unraveled before trial. It came to Posner and his fellow judges on the 7th Circuit as a suit, brought by Aleman, for false arrest and malicious prosecution. In sustaining those claims, Posner explains how easily an innocent person can implicate himself. The police told Aleman that the only possible explanation for Joshua’s injuries was that the baby had been shaken right before he collapsed. Aleman was the only person to have shaken Joshua just before he stopped breathing. “And so it was a logical necessity that he had been responsible for the child’s death. Q.E.D.,” Posner says. “A confession so induced is worthless as evidence, and as a premise for an arrest.”

That is exactly right. It also perfectly illustrates a serious problem in shaken-baby cases, where the accused often held or handled a baby before the awful moment of collapse, and may be easily led to blame himself.

In Shirley Ree Smith’s case, Justice Ginsburg concludes, “I would not ignore Smith’s plight and choose her case as a fit opportunity to teach the 9th Circuit a lesson.” That’s exactly right, too. There is only one lesson worth learning from this case, and it is about the power of mercy. California Gov. Jerry Brown has the authority to pardon Shirley Ree Smith. She has suffered more than enough for the death of her grandson. Brown should do for her what no judge now can.

x x x."

Laurence Watts: Gay Rights and the U.S. Supreme Court

Laurence Watts: Gay Rights and the U.S. Supreme Court

"x x x

The president appoints Supreme Court justices by and with the advice and consent of the U.S. Senate. In practice, presidents appoint justices whom they believe will make rulings that favour their own politics. In other words, Republican administrations appoint right-leaning justices, and Democratic administrations appoint left-leaning ones. Unless gay men and women reengage themselves with U.S. politics, they could face an unfriendly president and Senate after November 2012, just when key gay rights cases arrive at the U.S. Supreme Court.

Why is that important, given that there are currently no vacancies on the nine-member Supreme Court bench? Well, because the next presidential term could see three or more such vacancies arise.

Supreme Court justices are appointed for life, but that doesn't stop them from retiring. The average age at retirement of the last five Supreme Court justices was around 79.5 years. By the time of the 2016 presidential election, three of the current justices will exceed that age: Ruth Ginsburg (appointed by Clinton), Antonin Scalia (appointed by Reagan) and Anthony Kennedy (also appointed by Reagan). Moreover, that average retirement age of 79.5 is inflated by the June 2010 retirement of John Paul Stevens, the oldest member of the Supreme Court in history (he was 90 when he retired). Take him out of the equation and the average retirement age falls to 77, which would put Stephen Breyer (appointed by Clinton) in line for probable retirement, as well. It's therefore conceivable that four out of nine sitting justices could retire in the next presidential term.

x x x"

Supreme Court TV? Nice Idea, but Still Not Likely — Sidebar - NYTimes.com

Supreme Court TV? Nice Idea, but Still Not Likely — Sidebar - NYTimes.com

"x x x.

The Supreme Courts of Canada and the United Kingdom allow cameras. What the public sees in those countries, and what it would see here, is something not always prominent in the elected branches of our government: able public servants with a complete mastery of difficult materials grappling seriously with matters of surpassing consequence. It probably inspires confidence. It certainly dispels ignorance.

Justice Elena Kagan, the member of the court who has been most outspoken about the value of television coverage, recently recalled what it was like to see Supreme Court arguments before she joined the court.

“Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer,” she said at the Aspen Institute in August. “I thought if everybody could see this, it would make people feel so good about this branch of government and how it’s operating. And I thought it’s such a shame actually that only 200 people a day can get to see it.”

x x x

The arguments against cameras are mostly rooted in paternalism or self-interest. Some justices say the public cannot be trusted to understand what goes on at oral arguments and how the arguments figure in the work of the court. Others worry that additional public scrutiny would alter the behavior of lawyers and justices for the worse. Still others say they fear harm to their personal privacy or to the court’s prestige.

In an interview, Mr. Lamb said he had heard one main objection from the justices. “It’s the sound bite,” he said. “They don’t like, in the modern age, that people can sound bite them.”

C-Span would carry entire arguments, but it is true that others might use excerpts. It is also true that newspaper reporters use the text equivalent of sound bites all the time. We call them quotations.

The justices’ real fear is probably not that their questions would be taken out of context but that they would be made to look silly, as they do occasionally say goofy things.

In a speech in July, Justice Ruth Bader Ginsburg collected 10 examples of amusing comments from the term that had just ended, including questions about a “9,000-foot cow,” Satan and whether smoking marijuana amounted to the destruction of evidence.

Justice Ginsburg drew this conclusion: “From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon.”

There is room for compromise, and the court might consider half-measures and baby steps. When other courts cannot accommodate spectators in a single courtroom, for instance, they often arrange for a closed-circuit transmission to an overflow room within the courthouse. It is hard to see an objection to that, or to closed-circuit transmissions to other courthouses.

Justice Stephen G. Breyer, writing for four justices, discussed that idea in a dissent last year. He suggested that there would have been no harm in a plan that contemplated remote but carefully supervised viewing from courthouses around the nation of a trial over same-sex marriage in San Francisco.

Mr. Lamb, for his part, analyzed the fundamental question this way.

“If you can’t do this in public and you’re doing the public’s business,” he said, “then something is wrong with this picture.”

x x x.

White House looks to beef up management of electronic records - Nextgov

White House looks to beef up management of electronic records - Nextgov

"x x x.

Records now are managed primarily on an agency-by-agency basis with little cooperation. The memorandum directs agency chiefs to appoint a senior official within 30 days to lead the reviews.

About 95 percent of agencies fail to meet statutory requirements for maintaining their records, according to a NARA estimate based on agency self-assessments.

In some cases, that means agencies aren't saving the proper records. In other cases, they are storing records electronically but not taking steps to ensure they can be read or retrieved years down the road.

Agencies aren't required to turn over most records to NARA until 30 years after they were created, making it unlikely older documents will be stored in a file format contemporary computers will be adept at or even capable of reading.

Archivist of the United States David Ferriero has suggested reducing that lag time to a president's full term in office of either four or eight years.

Changing the 30-year window likely will be necessary to make a governmentwide electronic record management system feasible, Anne Weismann, chief counsel of the advocacy group Citizens for Responsibility and Ethics in Washington told Nextgov. CREW has filed numerous lawsuits aimed at preserving federal records. The deadline for saving documents could possibly be modified through executive orders or other policy statements rather than through legislation, she said.

x x x."

Accidental discharge of firearm by security guard is simple neglect of duty; penalty is 1-year suspension - A.M. No. CA-11-24-P

A.M. No. CA-11-24-P

"x x x.

THE COURT’S RULING

We agree with the OCA’s recommendation and find respondent Enrique E. Manabat, Jr. administratively liable for simple neglect of duty.

The unexpected discharge of a firearm may occur for a variety of reasons. It can be the result of mechanical failure such as wear, faulty assembly, damage or faulty design of the firearm, but most often, undesired discharges result from “operator error” or due to the carelessness or ineptness of the person handling the firearm. It is for the latter reason that our court security personnel are taught the basic rules of firearm or gun safety in order to prevent incidents of undesired discharges.

To exculpate himself from liability, the respondent contended that the discharge might have been caused by a mechanical failure; that his service pistol may have been defective because 9mm FEG Hungary pistolsused during their recent firing course at Camp Crame malfunctioned. This incident at Camp Crame, however, is barely proof that the respondent’s pistol is defective. One cannot simply generalize, based from such incident, that all 9mm FEG Hungary pistols used by the CA security personnel are defective. To bolster his theory, the respondent should have presented evidence to show that his service pistol was, at that time, not mechanically sound, particularly in light of the evidence that the pistol is in good working condition.

In ruling out mechanical causes, it can only be concluded that the undesired discharge of the respondent’s service pistol was the result of his own negligence; in the usual course of things, a firearm that is being unloaded should not discharge if gun safety procedures had been strictly followed. What cannot be denied is that the gun fired and the firing could not have happened unless there was a bullet in the gun’s chamber. Assuming that the respondent did indeed remove the magazine and did indeed cock the gun to eject whatever bullet that might have been in the chamber, obviously, he simply cocked the gun and did not visually examine if the chamber was clear. This is a basic and elementary precaution that every gun handler, more so a security guard who is provided a gun for his duties, should know.

The next question to be resolved is whether the respondent’s negligence, in causing the undesired discharge of his service pistol, is gross in nature. We rule in the negative.

Simple neglect of duty is defined as the failure of an employee to give proper attention to a required task or to discharge a duty due to carelessness or indifference.[14] On the other hand, gross neglect of duty is characterized by want of even the slightest care, or by conscious indifference to the consequences, or by flagrant and palpable breach of duty.[15]

We cannot consider the respondent’s negligence as gross in nature because there is nothing in the records to show that the respondent willfully and intentionally fired his service pistol. Also, at the time of the incident, the respondent did observe most of the safety measures required in unloading his firearm. As attested to by SG1 Tamba who was the lone eyewitness to the incident, the respondent did point the pistol’s muzzle towards a safe direction, i.e., to the ground, at the time it was being unloaded and when it unexpectedly went off – a fact evidenced by the bullet mark on the floor of the guardhouse.[16]

We also agree with the OCA that the respondent is not liable for conduct prejudicial to the best interest of the service. Although the Revised Uniform Rules on Administrative Cases in the Civil Service[17] does not provide for a definition or enumerate acts that constitute such an offense, we held that conduct prejudicial to the best interest of the service refers to acts or omissions that violate the norm of public accountability and diminish — or tend to diminish — the people’s faith in the Judiciary.[18] Here, we do not find the respondent’s negligent act to have an adverse reflection on the Judiciary’s integrity.

Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service,[19] simple neglect of duty is classified as a less grave offense, punishable by suspension without pay for one (1) month and one (1) day to six (6) months for the first offense. Considering the respondent’s performance ratings and that this is his first offense for simple neglect of duty, we impose upon him the penalty of suspension in the minimum period.

ACCORDINGLY, premises considered, respondent Enrique E. Manabat, Jr., Security Guard I of the Court of Appeals, Manila, is SUSPENDED for one (1) month and one (1) day, without pay, for simple neglect of duty. He is further DIRECTED to undergo, during his suspension, a firearm handling security course with the appropriate unit of the Philippine National Police, at his own expense, and shall be deemed to have completely served his suspension only upon submission of proof of the completion of this course. He isWARNED that a repetition of the same or similar offense shall be dealt with more severely.

Let a copy of this Resolution be given to the Presiding Justice, Court of Appeals, Manila, with the suggestion that the firearms and ammunition issued to the CA security force be technically examined for their mechanical safety and working order.

SO ORDERED.

x x x."

Command responsibility - scope and limitation explained - G.R. No. 191805

G.R. No. 191805

"x x x.

Third issue: Command responsibility in amparo proceedings

To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that the doctrine of command responsibility may be applied. As we explained in Rubrico v. Arroyo,[77] command responsibility pertains to the “responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict.”[78]Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses.[79] In the United States, for example, command responsibility was used in Ford v. Garcia and Romagoza v. Garcia – civil actions filed under the Alien Tort Claims Act and the Torture Victim Protection Act.[80] This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. Thus, it is our view that command responsibility may likewise find application in proceedings seeking the privilege of the writ of amparo. As we held in Rubrico:

It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution.

… … …

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.[81] (Emphasis supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of Rodriguez in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. In this regard, the Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting, thus:

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability should not abate the applicability of the doctrine of command responsibility. Taking Secretary of National Defense v. Manalo and Razon v. Tagitis in proper context, they do not preclude the application of the doctrine of command responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and its contemporary signification as a guarantee of protection of one’s rights by the government. It further stated that protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances, or threats thereof, and/or their families, and bringing offenders to the bar of justice.

Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the doctrine of command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis.

Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility doctrine to Amparo cases. The short title of the law is the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.” Obviously, it should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the crimes covered. Such limited treatment, however, is merely in keeping with the statute’s purpose and not intended to rule out the application of the doctrine of command responsibility to other appropriate cases.

Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the doctrine of command responsibility in the present case will only bring Manalo and Tagitis to their logical conclusion.

In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced disappearances or threats thereof. While there is a genuine dearth of evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command responsibility doctrine, the ponencia’s hesitant application of the doctrine itself is replete with implications abhorrent to the rationale behind the Rule on the Writ of Amparo.[82](Emphasis supplied.)

This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,[83] likewise penned by Justice Carpio-Morales, wherein this Court ruled:

Rubrico categorically denies the application of command responsibility in amparo cases to determine criminal liability. The Court maintains its adherence to this pronouncement as far as amparo cases are concerned.

Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo cases to instances of determining the responsible or accountable individuals or entities that are duty-bound to abate any transgression on the life, liberty or security of the aggrieved party.

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.

In other words, command responsibility may be loosely applied in amparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party.

Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further investigation by the appropriate government agency. (Emphasis supplied.)

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that should be addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. Thus, although there is no determination of criminal, civil or administrative liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain responsibility and accountability within these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be resolved whether the president, as commander-in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the following elements must obtain:

a. the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or had been committed; and

c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.[84]

The president, being the commander-in-chief of all armed forces,[85] necessarily possesses control over the military that qualifies him as a
superior within the purview of the command responsibility doctrine. [86]

On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence.[87] In the Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as theInstitutionalization of the Doctrine of ‘Command Responsibility’ in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other Law Enforcement Agencies (E.O. 226).[88]Under E.O. 226, a government official may be held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during, or immediately after its commission.[89]Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government official’s area of jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or office personnel are involved.[90]

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the president has the power to effectively command, control and discipline the military.[91]

b. Responsibility or accountability of former President Arroyo

The next question that must be tackled is whether Rodriguez has proven through substantial evidence that former President Arroyo is responsible or accountable for his abduction. We rule in the negative.

Rodriguez anchors his argument on a general allegation that on the basis of the “Melo Commission” and the “Alston Report,” respondents in G.R. No. 191805 already had knowledge of and information on, and should have known that a climate of enforced disappearances had been perpetrated on members of the NPA.[92]Without even attaching, or at the very least, quoting these reports, Rodriguez contends that the Melo Report points to rogue military men as the perpetrators. While the Alston Report states that there is a policy allowing enforced disappearances and pins the blame on the President, we do not automatically impute responsibility to former President Arroyo for each and every count of forcible disappearance.[93] Aside from Rodriguez’s general averments, there is no piece of evidence that could establish her responsibility or accountability for his abduction. Neither was there even a clear attempt to show that she should have known about the violation of his right to life, liberty or security, or that she had failed to investigate, punish or prevent it.

Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805

The doctrine of totality of evidence in amparo cases was first laid down in this Court’s ruling inRazon,[94] to wit:

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to therelevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence.Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.[95] (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the same being supported by substantial evidence. A careful examination of the records of this case reveals that the totality of the evidence adduced by Rodriguez indubitably prove the responsibility and accountability of some respondents in G.R. No. 191805 for violating his right to life, liberty and security.

a. The totality of evidence proved by substantial evidence the responsibility or accountability of respondents for the violation of or threat to Rodriguez’s right to life, liberty and security.

After a careful examination of the records of these cases, we are convinced that the Court of Appeals correctly found sufficient evidence proving that the soldiers of the 17^th Infantry Battalion, 5^th Infantry Division of the military abducted Rodriguez on 6 September 2009, and detained and tortured him until 17 September 2009.

Rodriguez’s Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward account of his horrific ordeal with the military, detailing the manner in which he was captured and maltreated on account of his suspected membership in the NPA.[96] His narration of his suffering included an exhaustive description of his physical surroundings, personal circumstances and perceived observations. He likewise positively identified respondents 1^st Lt. Matutina and Lt. Col. Mina to be present during his abduction, detention and torture,[97] and respondents Cruz, Pasicolan and Callagan as the CHR representatives who appeared during his release.[98]

More particularly, the fact of Rodriguez’s abduction was corroborated by Carlos in his Sinumpaang Salaysay dated 16 September 2009,[99] wherein he recounted in detail the circumstances surrounding the victim’s capture.

As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas validate the physical maltreatment Rodriguez suffered in the hands of the soldiers of the 17^th Infantry Battalion, 5^thInfantry Division. According to the Certification dated 12 October 2009 executed by Dr. Ramil,[100] she examined Rodriguez in the Alfonso Ponce Enrile Memorial District Hospital on 16 September 2009 and arrived at the following findings:

FACE

- 10cm healed scar face right side

- 2cm healed scar right eyebrow (lateral area)

- 2cm healed scar right eye brow (median area)

- 4cm x 2cm hematoma anterior chest at the sternal area right side

- 3cm x 2cm hematoma sternal area left side

- 6cm x 1cm hematoma from epigastric area to ant. chest left side

- 6cm x 1cm hematoma from epigastric area to ant. chest right side

- Multiple healed rashes (brownish discoloration) both forearm

- Multiple healed rashes (brownish discoloration)

- both leg arm

- hip area/lumbar area[101]

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the results of which confirmed that the injuries suffered by the latter were inflicted through torture. Dr. Pamugas thus issued a Medical Report dated 23 September 2009,[102] explicitly stating that Rodriguez had been tortured during his detention by the military, to wit:

X. Interpretation of Findings

The above physical and psychological findings sustained by the subject are related to the torture and ill-treatment done to him. The multiple circular brown to dark brown spots found on both legs and arms were due to the insect bites that he sustained when he was forced to join twice in the military operations. The abrasions could also be due to the conditions related during military operations. The multiple pin-point blood spots found on his left ear is a result of an unknown object placed inside his left ear. The areas of tenderness he felt during the physical examination were due to the overwhelming punching and kicking on his body. The occasional difficulty of sleeping is a symptom experience (sic) by the subject as a result of the psychological trauma he encountered during his detention.

XI. Conclusions and Recommendations

The physical injuries and psychological trauma suffered by the subject are secondary to the torture and ill-treatment done to him while in detention for about 11 days. The physical injuries sustained by the subject, of which the age is compatible with the alleged date of infliction (sic).[103] (Emphasis supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical finding that the injuries suffered by Rodriguez matched his account of the maltreatment inflicted on him by the soldiers of the 17^th Infantry Battalion, 5^th Infantry Division of the Philippine Army. Further, the kind of injuries he sustained showed that he could not have sustained them from merely falling, thus making respondents’ claim highly implausible.

Despite these medical findings that overwhelmingly supported and lent credibility to the allegations of Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No. 191805 still stubbornly clung to their argument that he was neither abducted nor detained. Rather, they claimed that he was a double agent, whose relationship with the military was at all times congenial. This contention cannot be sustained, as it is far removed from ordinary human experience.

If it were true that Rodriguez maintained amicable relations with the military, then he should have unhesitatingly assured his family on 17 September 2009 that he was among friends. Instead, he vigorously pleaded with them to get him out of the military facility. In fact, in the Sinumpaang Salaysay dated 4 December 2009[104] Wilma executed, she made the following averments:

18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa mukha syang pagod at malaki ang kanyang ipinayat.

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang iiwan sa lugar na iyon;

xxx xxx xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang linggo sa kampo ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo;

24. Na hindi ako pumayag na maiwan ang aking anak;

xxx xxx xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa kaligtasan ng aming buong pamilya, lalo na kay Noriel; xxx[105]

Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3 December 2009:[106]

24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina sya, malaki ang ipinayat at nanlalalim ang mga mata;

25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko syang masigla at masayahin;

26. Na ilang minuto lang ay binulugan nya ako ng “Kuya, ilabas mo ako dito, papatayin nila ako.”

27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang aking kapatid sa kanila para raw ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx[107]

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly contradictory, contention of respondents in G.R. No. 191805 that while Rodriguez had complained of his exhaustion from his activities as a member of the CPP-NPA, he nevertheless willingly volunteered to return to his life in the NPA to become a double-agent for the military. The lower court ruled in this manner:

In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the wilderness, and that he wanted to become an ordinary citizen again because of the empty promises of the CPP-NPA. However, in the same Return, respondents state that petitioner agreed to become a double agent for the military and wanted to re-enter the CPP-NPA, so that he could get information regarding the movement directly from the source. If petitioner was tired of life in the wilderness and desired to become an ordinary citizen again, it defies logic that he would agree to become an undercover agent and work alongside soldiers in the mountains – or the wilderness he dreads – to locate the hideout of his alleged NPA comrades.[108] (Emphasis supplied.)

Furthermore, the appellate court also properly ruled that aside from the abduction, detention and torture of Rodriguez, respondents, specifically 1^st Lt. Matutina, had violated and threatened the former’s right to security when they made a visual recording of his house, as well as the photos of his relatives, to wit:

In the videos taken by the soldiers – one of whom was respondent Matutina – in the house of petitioner on September 18, 2009, the soldiers even went as far as taking videos of the photos of petitioner’s relatives hung on the wall of the house, as well as videos of the innermost part of the house. This Court notes that 1Lt. Matutina, by taking the said videos, did not merely intend to make proofs of the safe arrival of petitioner and his family in their home. 1Lt. Matutina also desired to instill fear in the minds of petitioner and his family by showing them that the sanctity of their home, from then on, will not be free from the watchful eyes of the military,permanently captured through the medium of a seemingly innocuous cellhpone video camera. The Court cannot – and will not – condone such act, as it intrudes into the very core of petitioner’s right to security guaranteed by the fundamental law.[109] (Emphasis supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory defenses presented by respondents in G.R. No. 191805, give credence to his claim that he had been abducted, detained and tortured by soldiers belonging to the 17^th Infantry Battalion, 5^th Infantry Division of the military.

It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no substantial evidence to show that they violated, or threatened with violation, Rodriguez’s right to life, liberty and security. Despite the dearth of evidence to show the CHR officers’ responsibility or accountability, this Court nonetheless emphasizes its criticism as regards their capacity to recognize torture or any similar form of abuse. The CHR, being constitutionally mandated to protect human rights and investigate violations thereof,[110]should ensure that its officers are well-equipped to respond effectively to and address human rights violations. The actuations of respondents unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal.

b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to Rodriguez’s rights to life, liberty and security.

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official.[111] Moreover, in the context ofamparo

proceedings, responsibility may refer to the participation of the respondents, by action or omission, in enforced disappearance.[112] Accountability, on the other hand, may attach to respondents who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.[113]

In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo[114] that the right to security of a person includes the positive obligation of the government to ensure the observance of the duty to investigate, viz:

Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.

xxx xxx xxx

Similarly, the European Court of Human Rights (ECHR) has interpreted the “right to security” not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty. The ECHR interpreted the “right to security of person” under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey. In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.[115] (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable for the violation of Rodriguez’s right to life, liberty and security on account of their abject failure to conduct a fair and effective official investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only conducted a perfunctory investigation, exerting no efforts to take Ramirez’s account of the events into consideration. Rather, these respondents solely relied on the reports and narration of the military. The ruling of the appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are accountable, forwhile they were charged with the investigation of the subject incident, the investigation they conducted and/or relied on is superficial and one-sided. The records disclose that the military, in investigating the incident complained of, depended on the Comprehensive Report of Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501^st Infantry Brigade, 5^th Infantry Division, Philippine Army. Such report, however, is merely based on the narration of the military. No efforts were undertaken to solicit petitioner’s version of the subject incident and no witnesses were questioned regarding the alleged abduction of petitioner.

Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act No. 6975, otherwise known as the “PNP Law,” specifies the PNP as the governmental office with the mandate “to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution.” In this case, PDG Verzosa failed to order the police to conduct the necessary investigation to unmask the mystery surrounding petitioner’s abduction and disappearance. Instead, PDG Verzosa disclaims accountability by merely stating that petitioner has no cause of action against him. Palpable, however, is the lack of any effort on the part of PDG Verzosa to effectively and aggressively investigate the violations of petitioner’s right to life, liberty and security by members of the 17^th Infantry Battalion, 17^th Infantry Division, Philippine Army.[116] (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated his right to security, for which respondents in G.R. No. 191805 must be held responsible or accountable.

Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or accountability on the part of respondents P/CSupt. Tolentino, P/SSupt. Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had already retired when the abduction and torture of Rodriguez was perpetrated, while P/SSupt. Santos had already been reassigned and transferred to the National Capital Regional Police Office six months before the subject incident occurred. Meanwhile, no sufficient allegations were maintained against respondents Calog and Palacpac.

From all the foregoing, we rule that Rodriguez was successful in proving through substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1^st Lt. Matutina, and Lt. Col. Mina were responsible and accountable for the violation of Rodriguez’s rights to life, liberty and security on the basis of (a) his abduction, detention and torture from 6 September to 17 September 2009, and (b) the lack of any fair and effective official investigation as to his allegations. Thus, the privilege of the writs of amparo and habeas data must be granted in his favor. As a result, there is no longer any need to issue a temporary protection order, as the privilege of these writs already has the effect of enjoining respondents in G.R. No. 191805 from violating his rights to life, liberty and security.

It is also clear from the above discussion that despite (a) maintaining former President Arroyo in the list of respondents in G.R. No. 191805, and (b) allowing the application of the command responsibility doctrine toamparo and habeas data proceedings, Rodriguez failed to prove through substantial evidence that former President Arroyo was responsible or accountable for the violation of his rights to life, liberty and property. He likewise failed to prove through substantial evidence the accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan.

x x x."