Prosecutors buck military trial for Pestaño suspects

Ombudsman prosecutors have contested the plea of Navy officers charged with the murder of Ensign Philip Pestaño to transfer their case to a military tribunal, but also said they were willing to have the case transferred to the appropriate court if it finds that the Sandiganbayan has no jurisdiction over the case.

In an omnibus motion and opposition filed before the Sandiganbayan Third Division, the prosecutors asked the court to hold in abeyance the resolution of the motion to quash the murder charges filed by the accused.

The prosecutors said they are still checking the contention of Naval Captain Ricardo Ordoñez that his rank was just Lieutenant Commander when Pestaño was found dead aboard the Navy ship that he commanded in 1995.

Had that been the case, the murder charge against Ordoñez and the other Navy officers should not have been filed in the Sandiganbayan.

But according to prosecutors, Ordoñez’s Jan. 6, 2006 counter-affidavit to the murder complaint showed that his rank was Naval Captain. They also said the statement of service that he submitted to the court did not state what his rank was when Pestaño died.

The prosecutors also said Ordoñez’s rank could only be validated once the Navy produces subpoenaed documents.

They also said they subpoenaed the service records of all the accused to determine their exact ranks, status or designations when Pestaño died and when the charges were filed. But the Navy, instead of complying with the subpoena, just forwarded it to the Navy Judge Advocate for comment.

Still, they are willing to withdraw the case if it is shown that it should have been filed in another court.

“The prosecution is amenable to the withdrawal of the information should there be an official document to show that the position of the accused does not fall within the jurisdiction of the Sandiganbayan,” they said.

As for the Navy officers’ plea to bring their case to a military tribunal, the prosecutors said Ordoñez has already retired while coaccused Lt. Cmdr. Ruben Roque was no longer in active service.

They also said the jurisdiction of a court martial is limited to service-connected crimes, and murder is not one of them.

In their pleading, the prosecutors also asked the Sandiganbayan not to allow the Navy officers to file their motion for reconsideration on the Ombudsman resolution indicting them for murder. They said the five-day period for filing the motion has lapsed.

They also opposed the plea of the accused to lift their hold departure order, saying that since the court has not yet ruled on the jurisdiction over the case, the issuance of a hold departure order was proper since it naturally follows the filing of the charge sheet.

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By Leila B. Salaverria
Philippine Daily Inquirer

5:07 am | Thursday, February 23rd, 2012

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Navy officers tagged in Pestaño slay case want to be tried by military court

MANILA, Philippines —The Navy officers accused of murdering Ensign Philip Pestaño want their case to be tried by members of the military.

In a manifestation and motion filed on Wednesday, they asked the Sandiganbayan Third Division to refer their case to a military tribunal because of national security issues and because the case would involve military terminologies that civilians might not fully understand.

According to the accused, their case should be transferred because all of them are or were members of the military and because the Armed Forces of the Philippines has been investigating military personnel on the alleged cover-up of the Pestaño murder case. The accused have filed complaints before the military against Pestaño’s classmates for allegedly covering up his suicide.

Pestaño was found dead inside the Navy’s BRP Bacolod City on September 27, 1995, with a gunshot wound on the head.

Earlier investigations ruled his death a suicide, but his parents refused to believe this and filed a complaint for murder against several Navy officers.

Last month, the Office of the Ombudsman filed murder charges before the Sandiganbayan against Capt. Ricardo Ordoñez, Cmdr. Reynaldo Lopez, Hospital Man 2 Welmenio Aquino, Lt. Cmdr. Luidegar Casis, Lt. Cmdr. Alfrederick Alba, machinery repairman 2 Sandy Miranda, Lt. Cmdr. Joselito Colico, Lt. Cmdr. Ruben Roque, PO1 Carlito Amoroso and PO2 Mil Leonor Igcasan.

But the officers have contested their indictment and insisted that Pestaño took his own life. They also questioned the Sandiganbayan’s jurisdiction over the case because based on the rank of the officers when the offense was committed, their case must be handled by a regional trial court or a military tribunal.

In their latest pleading, the accused said their case should be under a military tribunal because of national security concerns. The navy ship where Pestaño died would be subject to ocular inspection, the accused pointed out..

“Hence, the defense capability of the country’s naval force will be exposed to the public as well as to the enemies of the state, including but not limited to terrorist groups,” they said.

According to the accused, four of them are senior intelligence officers holding sensitive positions in the Navy.

They cited the need for military experts in the court martial because during the preliminary investigation of the case, technical and military terminologies and theories that were foreign to civilians were raised.

The accused also noted that a Manila court could have jurisdiction over the case as well on the basis of the Navy headquarters being  in Manila.

But they said they would not want the case to go there because of what they have perceived to be the bias of Manila Mayor Alfredo Lim for the Pestaño family. They recalled that on the day after the murder charges were filed, Lim called for a press conference and said he has been a supporter of the Pestaño family and had provided a lawyer for them.

This has prompted them to believe they would not get a fair and impartial trial in the Manila RTC.

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By Leila B. Salaverria
Philippine Daily Inquirer

7:09 pm | Wednesday, February 15th, 2012

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Expert insists Pestaño death was suicide

A forensic expert who investigated the death of Navy Ensign Philip Pestaño aboard a Navy ship in 1995 said that the officer’s family had “twisted the facts to suit their conclusion” that Pestaño had been murdered.

Forensic pathologist Dr. Raquel del Rosario-Fortun said she stood by her findings in 1995 after she was hired by the Pestaños to review the official findings—that Pestaño had shot himself inside his cabin aboard the BRP Bacolod City on Sept. 27, 1995.

The Pestaños had disputed Fortun’s claim.

Reversing a 2009 decision by her predecessor, Merceditas Gutierrez, Ombudsman Conchita Carpio-Morales in a resolution last January 10 ordered that 10 Navy officers and enlisted personnel be charged with murder without bail in Pestaño’s death.

“I’ve been consistent since 1995,” Fortun said when interviewed last Thursday at the University of the Philippines College of Medicine where she is a professor at the Department of Pathology.

“I said the evidence pointed to a suicide. And I’m (still) saying the same thing. There’s nothing new that has come up. It’s the same. It’s just that they are now twisting the interpretation of the findings,” she said.

When she gave her report, she said Pestanos’ parents Felipe and Evelyn rejected it because “they already had a conclusion,” and that she was retained “to prove that it was not a suicide.”

She said the Ombudsman did not cite any new evidence but rehashed the interpretation given  by an American “expert” hired by the Pestaño family “to say what they want to hear.”

The Ombudsman mainly relied on the opinion of Wayne Hill Sr., an American self-proclaimed forensic specialist who advertises his services on the Internet.

Fortun, who has kept a file folder on the Pestaño case, said the facts were “misinterpreted” by Hill who she said was not a forensic pathologist.

She said the Ombudsman used Hill’s claim that the contusion on Pestaño’s head was caused by a blunt object and a laceration in his left ear indicated foul play.

But according to Fortun, the two contusions that were a centimeter from the bullet hole and the ear laceration were related to the gunshot wound.

“Based on the mechanisms of how a bullet destroys tissue, (the contusion is) what is called a muzzle imprint. And then the injury near the (bullet) exit near the ear, that is what you call a laceration that is probably from the gases of the bullet exit,” Fortun said.

But the lawyer of the Pestaño family on Monday disputed Fortun’s claim, saying that the 1997 Senate investigation into Pestaño’s death discredited Fortun’s testimony on behalf of the Philippine Navy.

“If you look at the Senate committee report, she was discredited as an expert witness of the Philippine Navy. She admitted that at the time she did not have enough experience in examining cases similar to Philip’s case,” lawyer Romel Bagares said in an interview.

Bagares said Fortun had tried to make it appear that she was a “superwoman forensic expert” knowledgeable in fields like ballistics and hand-writing when she was not.

Against Fortun’s lone testimony, Bagares said, four medico legal experts and two ballistics experts trained by the US Federal Bureau of Investigation agreed that Pestaño’s death was not a suicide.

“All of these experts agreed that there was foul play,” Bagares said.

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By Dona Z. Pazzibugan, Philip C. Tubeza
Philippine Daily Inquirer

4:22 am | Tuesday, February 7th, 2012

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Raps filed vs 3 AFP officers for Pestaño 'cover-up'

A complaint has been filed with the Armed Forces of the Philippines (AFP) against three military officers for the alleged cover-up on the alleged suicide attempt of Ensign Philip Pestaño, whose death in September 1996 had been earlier ruled as suicide.
 
Pestaño’s death has been earlier ruled as suicide, but the Ombudsman recently ordered the reopening of the case after its investigation revealed that Pestaño was murdered and that his colleagues had conspired to make his death look like a suicide.
 
The complaintants said that had the respondents informed Pestaño’s commanding officer of his earlier suicide attempt, “the second suicide could have been abated and Pestaño would still be alive today.”
 
The three-page complaint was filed by the 10 Navy personnel implicated in the alleged murder of Pestaño, among them retired Navy Capt. Ricardo Ordoñez, former commander of BRP Bacolod City where Pestaño’s body was found on Sept. 27, 1995.
 
Named respondents in the complaint, which was filed before the office of AFP chief Gen. Jessie Dellosa, were Lt. Col. Felix Tayo of the AFP Medical Corps; and Navy commanders Joselito de Guzman and Romulo Vigilancia. De Guzman and Vigilancia were said to be Pestaño’s classmates in Philippine Military Academy (PMA) Class of 1993.
 
The complaint was for violations of the Articles of War, specifically conduct unbecoming of an officer and a gentleman, conduct prejudicial to good order and military discipline, and conduct bringing discredit upon military service.
 
Cover-up?
 
In their complaint, the complainants alleged that the respondents hid to Ordoñez the fact that Pestaño had attempted to take his own life after his fiancée, Djoanna Yasay, filed an administrative complaint against him.
 
They said this happened on Sept. 10, 1995, or 17 days before Pestaño’s body was found with a fatal gunshot wound in his head.

The complainants alleged that on Sept. 10, 1995, Pestaño was “found with deliberately slashed wrist in an attempt to commit suicide as a consequence of the administrative complaint filed against him by his fiancée Djoanna Yasay."
 
Ordoñez, in an earlier interview, said Yasay filed a complaint against Pestaño before the military for backing out of his promise to marry her.
 
The complaint said De Guzman and another member of PMA Class 1993, Robert Bosch – then a Navy ensign who has since retired from the service – took Pestaño out of the BRP Bacolod City and brought him to the Camp Navarro Hospital in Zamboanga City for treatment.  The ship was then docked at the Zamboanga City pier.

Depressive mood
 
The complainants alleged the Pestaño’s classmates “were aware of his depressive mood” and yet did not inform Ordoñez, his commanding officer, about it.
 
According to the complaint, Pestaño’s wound was sutured by Tayo, after which he was referred to (now retired) Lt. Col. Jose del Rosario, a neuro-psychiatrist and psychologist, for examination.
 
“Del Rosario did not recommend Pestaño’s confinement to the hospital for his suicidal tendencies nor did Del Rosario inform Pestaño’s CO (commanding officer) about it,” a portion of the complaint read.
 
There was also an attempt to cover up Pestaño alleged suicide on Sept. 27, 1995, the complainants accused.
 
They said another classmate of Pestaño, then Ensign Ediwn Vigilar (now also retired from the service), “was the first person to board the ship and took Pestaño’s body to the morgue. Vigilar was the one who washed Pestaño’s body and scrubbed his hands to remove the gunpowder residue.”

Ilegal drugs, sleepwalking
 
The complaint said Vigilancia likewise boarded the ship and “took away Pestaño’s two pillows which has blood and bone fragments.”
 
 “These pillows likewise contained illegal drugs belonging to Pestaño for his personal use,” they added.
 
The complaint alleged that before his death, Pestaño had supposedly confided to one ensign Alvin Parrone (now deceased) “that he had taken drugs before going to bed on the night when he was observed to be sleepwalking.”
 
“Pestaño’s classmates knew from the start that he was suffering from deep depression and wanted to end his life because his problem is unbearable,” the complaint said.
 
“The unbearable problem of Pestaño at the time he committed suicide is the administrative complaint filed by his girlfriend because his parents, particularly his father, Felipe Pestaño, also known as Don Pepe, do not approve of her religious beliefs,” the complaint added.
 
It further said that “the classmates of Pestaño tried desperately to cover up his suicide attempts because they feel that they were not able to stop him from taking his life.”
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 KBK, GMA News
January 25, 2012 6:20pm
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Sandiganbayan has 'no jurisdiction over us', say accused in Ensign Pestaño slay

Ten Philippine Navy officers accused of the 1995 murder of Ensign Philip Andrew Pestaño challenged the case the Office of the Ombudsman filed before the Sandiganbayan by arguing that the anti-graft court has no jurisdiction over them.
 
Last Jan. 11, the Ombudsman filed murder charges against Navy Captain Ricardo Ordoñez, Cdr. Reynaldo Lopez, HM2 Welmenio Aquino, LCdr. Luidegar Casis, LCdr. Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito Colico, LCdr. Ruben Roque, Petty Officer 1st Class Carlito Amoroso, and Petty Officer 2nd Class Mil Leonor Igcasan.

The respondents were also deemed administratively liable for grave misconduct and ordered them dismissed from service.

The 10 accused Navy officers said in a motion their lawyers filed before the Sandiganbayan that the court and the Ombudsman have no jurisdiction over them because at the time of the alleged murder of Pestaño they did not possess the rank that would qualify them as officers the Ombudsman can charge before the Sandiganbayan.
 
Republic Act (RA) No. 8249, also known as the Sandiganbayan Law, provides that the Sandiganbayan has jurisdiction over “Philippine army and air force colonels, naval captains, and all officers of higher rank.”
 
Defense lawyers Ana Luz B. Cristal and Donnabel Cristal Tenorio said the court cannot try Ordoñez because he retired in December 2005 and is no longer a public official. They said Ordoñez was a lieutenant commander at the time of Pestaño’s death.

Ombudsman investigators said Pestaño was killed because of his opposition to the use of the Navy vessel, BRP Bacolod City, for the transport of hot lumber purportedly intended for then Vice Admiral Pio Carranza, PN Flag-Officer-in-Command.
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 ELR/KG, GMA News
January 24, 2012 9:15pm
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Retired Navy officer in Pestaño case maintains innocence

A Navy officer implicated in the 1995 murder of Ensign Philip Andrew Pestaño maintained his innocence Monday, stressing that Pestaño committed suicide and was not killed.

Retired Capt. Ricardo Ordoñez said he is wondering why the case was revived by the Ombudsman when three investigative agencies – the Western Police District (now Manila Police District) , the National Bureau of Investigation and the Philippine National Police Criminal Investigation and Detection Group – had already cleared him and nine other Navy officers and men linked to the case.

“We are all innocent of the charge…It is really a suicide. It’s wrong to say that he was killed,” said Ordoñez, the commanding officer of the BRP Bacolod City where Pestaño was assigned as a deck officer and where his body was found on Sept. 27, 1995.

Last week, Ombudsman Conchita Carpio-Morales reversed an earlier decision saying that Pestaño, who graduated from the Philippine Military Academy two years before his death, committed suicide, and ordered that the 10 officers be charged with the crime, almost 17 years after the incident.
 
Pestaño’s lifeless body was found in his cabin by his fellow Navy personnel with a gunshot wound in the head while the ship was en route to the Navy headquarters in Manila from Sangley Point in Cavite.
 
Apart from Ordoñez, the other accused in the case are Cdr. Reynaldo Lopez, Lt. Cdr. Luidegar Casis, Lt. Cdr. Alfrederick Alba, Lt. Cdr. Joselito Colico, Hospital Man 2 Welmenio Aquino,  Machinery Repairman 2 Sandy Miranda, Lt. Cdr. Ruben Roque, Petty Officer 1 Carlito Amoroso and Petty Officer 2 Mil Leonor.
 
Lopez, Casis, Alba, Colico, Aquino and Miranda, who are still in the active service, have been relieved and recalled by the Navy leadership to the Navy headquarters so they can face the charges.
 
On the other hand, Ordoñez, Roque, Amoroso and Leonor have either retired from the service or have been subjected to honorable discharge, thus the military no longer has a control over them.

In its 21-page resolution, the Ombudsman said Pestaño was killed because he opposed the use of a Navy vessel to transport illegal lumber for Vice Admiral Pio Carranza, then Flag Officer in Command of the Philippine Navy.
 
Ordoñez, who retired from the service in 2005 upon reaching the retirement age of 56, sought to dispute insinuations that they conspired to kill Pestaño. He said Pestaño committed suicide because of a problem with a woman.

He also denied that they were involved in illegal logging.

“There is no illegal logging there, the lumber have papers. They were intended for the flag officer in command. Is that illegal logging? It may be illegal transport but this is not illegal [logging]. I was cleared by the Ombudsman on this,” Ordoñez said. — KBK, GMA News
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January 16, 2012 7:47pm
GMA News Online
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Navy recalls 6 of 10 officers in Pestaño case

MANILA, Philippines - Navy Flag Officer-in-Command Vice Admiral Alexander Pama yesterday ordered the recall of six active personnel from their current assignments after they were indicted in the 1995 murder of Ensign Philip Andrew Pestaño.

Pama’s recall order was in line with the order of the Office of the Ombudsman against the 10 Navy officials indicted in the murder case.

“We’re now doing that,” Pama said in reference to his recall directive on the six Navy officers and enlisted personnel.

Navy spokesman Lt Col. Omar Tonsay said the subject of the recall order are Commander Reynaldo Lopez, executive officer of the newly acquired Navy frigate BRP Gregorio del Pilar; Hospitalman 2nd Class Welmenio Aquino, assigned at the Navy medical dispensary; Lt. Commander Luidegar Casis, commanding officer of Navy logistic ship BRP Tausug; Lt. Commander Alfrederick Alba, executive officer of BRP Dionisio Ojeda; Machinery Repairman 2nd Class Sandy Miranda at the Navy headquarters support service, and Lt. Commander Joselito Colico, Logistics officer of the Naval Forces Eastern Mindanao (NFEM).

All six, along with four former colleagues who are no longer connected with the Navy – retired Captain Ricardo Ordonez, retired Lt. Commander Ruben Roque, Petty Officer 1st Class Cartlito Amoroso and retired Petty Officer 2nd Class Mil Igcasan Leonor – were indicted by the Ombudsman for the murder of Pestaño.

Ombudsman Conchita Carpio-Morales reversed the May 2010 decision that dismissed the case. She said there is probable cause to file charges against the respondents before the anti-graft court.

Morales also found the respondents administratively liable for grave misconduct and ordered them dismissed from the service.

Morales said there is prima facie case of conspiracy to murder Pestaño.

“The order of Admiral Pama was very clear that in this case, we will respect and abide by the rule of the law and its underlying policies that also call for the respect of the rights of the accused,” Tonsay said.

Tonsay added that they have yet to determine where the six would be confined once they are back from their units’ assignments.

He said they could be held at the Navy headquarters in Roxas Boulevard or at its Naval station at Fort Bonifacio in Taguig City.

Tonsay said the six, after submitting themselves to the legal processes, would be eventually dismissed from the service as directed by the Ombudsman.

He said the six could always question the dismissal by filing a motion for reconsideration.

“If that is really the order of the Ombudsman to discharge or dismiss them, they will be dismissed. The order of the FOIC (flag office in command) is for us to follow the rule of law, follow proper judicial and administrative procedures and respect the rights of the accused regarding due process,” he said.
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By Jaime Laude (The Philippine Star) Updated January 13, 2012 12:00 A
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