Where the defense stands

MANILA, Philippines - Where will the defense go from here?

It is a question on Filipinos' minds at the close of Day 15 of Chief Justice Renato Corona's impeachment trial.

Week 4 saw officials from Philippine Savings Bank (PS Bank) and Bank of the Philippine Islands (BPI) present some of Corona's bank accounts -- and the combined P31-M in them at the end of 2010.

Corona declared P3.5-M under 'cash and investments' in his 2010 Statement of Assets, Liabilities and Net Worth (SALN).

Adept defense

Before the start of the trial, Corona vehemently declared his innocence and declared he would not resign.

Backing him, his lawyers had continuously insisted in the past weeks that the Chief Justice had disclosed everything in his SALNs.

The prosecution had argued that at least P28.3-M is left unaccounted for, judging from the 6 accounts opened by the court. The amount excludes the other 5 dollar accounts at PSBank that are presently covered by a Temporary Restraining Order (TRO) issued by the Supreme Court. The same TRO covers other accounts under Corona's name that may exist in other banks.

According to some lawyers who have been closely watching the trial proceedings, the defense lawyers appear more adept than their counterparts and have done a better job than the prosecution in the first weeks of the trial.

Objections by Corona's counsels, although not always technically sound, have also been upheld. Lead counsel Serafin Cuevas has likewise shown convincing flare and confidence before the impeachment court.

In the process, the sharp 83-year-old former Supreme Court justice gained the respect of the watching public and the court early on, helping the defense edge out an arguably underprepared prosecution. Among his and his team's bigger successes have been the striking out of Article 2.4 which refers to Corona's alleged ill-gotten wealth, and the prevention of the Chief Justice and his family from testifying.

Fumbles

But then cracks started to show.

Cuevas, for the first time ever, asked for a sudden suspension on Day 8, January 30, when Megaworld Finance Director Giovanni Ng revealed a 40% discount given to Corona for his Bellagio penthouse. The discount was later corrected and said to be a reduction due to weather damage.

Furthermore, the total discount given was supposedly only 10%. By then, the watching public had already noticed what appeared to be Cuevas' unprecedented fumble.

The lead counsel again committed a mistake upon cross-examination of Bureau of Internal Revenue chief Kim Henares, when he asked the latter what her opinion was on correcting flaws in SALNs. When a feisty Henares testified that she disapproved of it since doing so would have been tantamount to disrespect of the oath taken by public officials when filling out their SALNs, Cuevas moved to strike out the answer. This made his blunder more noticeable than it should have been.

More recently, Cuevas asked the court for a subpoena of his own client's statements of account from BPI-Ayala, but withdrew his request after senator-judges and prosecutors jumped at the prospect of being able to see Corona's bank statements.

Whether or not Corona had fully disclosed crucial information to his counsels -- which could have led Cuevas to commit errors -- has become the subject of speculation among lawyers. 

Shifting arguments

The defense's arguments have noticeably changed as weeks have gone by.

From insisting that Corona had disclosed everything in his SALNs, the assertion changed to Corona disclosing assets belatedly. Later, the defense insisted that legal remedies for discrepancies in SALNs exist, especially if these are unintentional. 

More recently, they have resisted an investigation of Corona's bank accounts despite initial insistence that he had been honest in his SALNs.

Defense counsel Ramon Esguerra, in a text message to Rappler on Wednesday, February 8, said that the defense "will be able to show the provenance of the deposits both from the sale of the two lots and the savings of the family," even mentioning the cash assets of Mrs Corona's family corporation.

On Friday, February 10, defense spokesperson Karen Jimeno echoed his statement and told media that Corona's money in his foreign currency accounts were his savings from before his appointment as Chief Justice. This confirmed however that Corona had foreign currency accounts which were not declared in his SALN.

But Esguerra countered, "We do not know if CJ has foreign currency deposits with PSBank or any other Bank for that matter. The source documents on the basis of which the requests were made and pursuant to which the subpoenae were issued, was spurious as testified to by the PSBank President. This testimony validates the prosecution's admission that the source document is unauthenticated. Assuming it to be genuine, it is the fruit of a criminal act, hence, inadmissible or cannot be admitted as evidence."

Inadmissible evidence

The defense disbelieves the claim of the prosecution that it was a "small lady" who provided them with supposedly secret bank information. In addition, they have consistently argued that the prosecution is on a "grand fishing expedition," asking for subpoenas of various evidence to help them prove their case.

The explanations of Corona's team, however, have been directed at Article 2.4 (unexplained wealth), rather than Article 2.3, the nondisclosure of SALNs -- "in violation of the Anti-graft and Corrupt Practices Act." Whether the funds were acquired illegally or not is no longer the scope of Article 2.3, as it only deals with whether or not SALNs were honestly declared.

While the defense said the evidence is inadmissible because of how it was acquired, Section 2 of RA 1405, the Bank Secrecy Law, says otherwise. While the section states that all deposits with banks are "absolutely confidential in nature and may not be examined," it provides some exceptions -- one of which is "in cases of impeachment."

Supreme Court case Ejercito vs. Sandiganbayan also upheld a subpoena for bank accounts, saying, "R.A. 1405, it bears noting, nowhere provides that an unlawful examination of bank accounts shall render the evidence obtained therefrom inadmissible in evidence."

Prosecutors shot down the fishing expedition argument, saying that the subpoena of bank accounts clearly relates to Article 2.3, and is thus relevant.

Tactical strategy?

The question of whether nondisclosure of SALNs is an impeachable crime is yet another debate the defense has initiated.

But prosecutors have argued that a consistent pattern of huge discrepancies in the SALNs is telling of the moral fitness of the Chief Justice who is expected to be honest, upright, and of unquestionable integrity.

The question thus arises: are these answers or explanations by the defense a tactical strategy?

Are they all part of the defense's plan to "misdirect" the public and the court? Are they raising doubts on admissibility and acquisition of evidence instead of addressing the SALN disclosure problem in an attempt to drag attention elsewhere and distract from the issue at hand -- discrepancies in Corona's SALNs?

The defense has been accused by the prosecution of redirecting focus elsewhere through motions and technicalities, to lose the public's interest. They deny this, as well as using other such strategies, insisting that they are merely ensuring that the constitutional rights of the Chief Justice are not trampled upon.

In due time

Meanwhile, the defense continues to say they are confident they will be able to explain their side in due time.

Defense spokesperson Tranquil Salvador III urged the public to be patient and refrain from jumping to conclusions, saying there are explanations.

"We will have the time at maririnig po ng taong bayan kung ano po ang paliwanag namin diyan (the people will hear what our explanations are)," said Salvador.

The defense undoubtedly faces a tough challenge ahead, given the evidence and testimonies from the prosecution's witnesses but Corona's team will have their day in court -- and they may have the answers. - Rappler.com