Impeachment, political, not legal process

Much is now being said about the recent impeachment of Chief Justice Renato Corona and his impending trial before the Philippine Senate, both for and against it. That there are differing views about it is shown by the opposing statements issued by organizations of lawyers. But if opinion polls are to be believed, the common man favors putting the chief magistrate on trial and if I were one of the Senator-Judges, it would pay to read the people's pulse. The mid-term elections is less than two years away and for the Senators who are elected-at-large as opposed to the Congressmen who obtain their posts from their constituents in their local districts, much of their chances on a second term depend on public opinion.

Which is why the impeachment trial, although at first glance would seem like a court procedure complete with all the legal jargon and trappings, in essence it still is, and ultimately is, a political process owing to the very nature that the senator-judges owe their position and to whom their very tenure depends. So while evidence would play an important part, here is one trial where technicalities should not be resorted to but rather the over-all strategy of both camps should be focused on translating all the legal gobbledegook to layman's terms and presenting themselves as a much sympathetic figure to the common tao. Media, now more than ever, plays a bigger role and "trial by publicity" is actually the secret strategy given the dynamics of an impeachment trial.

History is strewn with the carcasses of the failed re-election bids of the senators who voted and showed their biases for then President Erap during his impeachment. Incumbent Senator Judge tito Sotto humbling defeat after the aborted impeachment of ex President Erap is a most illustrating example and I'm sure bears on the minds of the present Senate especially those gunning for re-election. The most impartial judge would then be those senators who would not be seeking a second term or at least those with such a high credibility that they are impervious to the swinging scales of survey polls.

So it comes as no surprise that the congressmen-prosecutors are lapping it up in the press, showing piecemeal their evidence much to the chagrin of the senator-judges. The former know very well that thereal battle ground is not the Senate halls but rather the court of public opinion. That while the Senator-judges hold the fate of CJ Corona, the people in the end, will be the ultimate judge when they show their satisfaction or dissatisfaction with their decision on the impeachment trial come May 2013.

Nuts in Marriage But Not in Everything Else

As of date, the Philippines is but only one of the two countries left in the world that does not allow/legalize divorce. Much of it is due to the fact that it is a pre-dominantly Roman Catholic state and divorce is looked upon with disfavor by the Church. While there may be a constitutional prescription of separation of Church and State, members of the Church laity and hierarchy does not hesitate to use their moral influence to shoot down any legislative moves that they feel is contrary to Church teachings and beliefs and one such measure that has been time and time again filed only to get "killed" by strong Church opposition is the proposed bill legalizing divorce. Politicians, wary of their Catholic constituents, dare not support it for fear of earning the ire of Church leaders. "What God has joined together let no man put asunder" has remained in Philippine laws and "only till death do us part" is a vow that husband and wife are legally bound to follow.

However, just like some legal impediment, a loophole can be found. The Family Code of the Philippines has provided the answer to many wanting to get out of a marriage yet cannot easily do by way of the still unallowed divorce route. Its called "annulment of marriage" and "declaration of annulment of marriage". Unlike divorce which recognizes that there was a valid marriage that took place, annulment goes by the premise that there never was a marriage in the first place for reasons stated so in the relevant provisions of the Family Code. It does not only sever the marital bonds, but dissolves it leaving each partner to marry someone else. It is a much ardous process and not all those who file for annulment have the luck of having their petitions granted. It can be given only for stated grounds in the law which the party seeking for annulment must duly prove and while most such petitions come uncontested by the other spouse, the State, represented by the Solicitor-General, is a party to the proceedings to ensure that there is no collusion between the married couple.

The most common ground used is that stated in Article 36 of the Family Code which cites that psychological incapacity of either spouse makes the marriage void "even if such incapacity becomes manifest only after the celebration of marriage." So what is psyhcological incapacity? A concrete despription thereof and the evidentiary requirement needed is stated in the case of Republic vs. Court of Appeals, where the Supreme Court stated as one of the gudelines in determining whether the ground of psyschological incapacity can be used to declar a marriage void as provided for in Art. 36 of the Family Code. Let me quote a part of such guidelines: "The evidence must convince the court that the parties, or one of them, was mentally or psychically (sic) ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof". In other words, at the time of the marriage, one of both of the spouses, was psychologically sick to the extent that he could not have known what he was getting into. The Supreme Court-decided case further states that one may be psychologically unable to enter into marriage and fulfill marital obligations yet still be capacitated to do other things, hence the title of this blog.

A comparison between the two modes of getting out of a marriage that either parties does not want to continue to be in would show that divorce is still the much easier route. For as long as both parties agree, it is a done deal. Not so with having a marriage annulled. The State still has a say and the guidelines set by the Supreme Court have to be met.

The Value of the Tipster and State Witness; their differences and everything else in between

Solving a crime and making the charges stick all the way to securing a conviction are two different things. For the CSI fanatics, the story ends when the character Grisham and company (sigh, wish he was still with the series) finally nails the perp (for perpetrator) through the amazing science of modern forensic. But for the prosecutor who must string together the case and file the charges in court, it is just the start of a long and tedious battle, that, had the police done their homework, would have gotten a more than fighting chance in the arena that is the court room.

This is why so many cases abound where the law enforcers nab the culprit but then they get away because so many things happened along the way to its landing in the prosecutor's office. Let me me name some of them culled from my six years of practicing law and reading legal tomes as well everything else I have absorped through osmosis (e.g. read in novels, caught in conversations, watched on tv and the movies) processed in the gray matter between my ears (read: analyzed)

One. Failure to follow procedure. Most basic of course is the respect for the constitutional rights of the suspect turned accused. They are a-plenty but let me just cite a few, like the Miranda rights for instance (taken from the American model and enshrined in our constitution) that must be read to an accused before he is arrested. In the Philippines, it won't however affect much the merits of his case but would consequate administrative sanctions for the arresting officers. But one of the most important procedures that must never be overlooked in a succesful prosecution of a criminal case, is the observance of securing a search warrant or making a valid warrantless search and seizure before searching a suspect's place or his place of crime. Failure to do so would mean the suppression of the evidence gained by such improper search following the doctrine of the "fruit of the poisonous tree". While there are still many procedures that must be undertaken prior to the actual filing of the case in court let me just elaborate one more which I would rather call a legal strategy. Take the chain of custody of evidence for instance. This must be established in court and may only be done if proper documentation is made everytime evidence changes hands. Defense lawyers would grab the opportunity to prove that the integrity of the evidence now before the court is tainted all by proving the chain of lawful custody was broken thus, giving persons other than those authorized time and opportunity to make a switch or otherwise taint it.

Two. Bungling the groundwork. This is one of the reasons why I envy the American model where the district attorney (the equivalent of public prosecutor in the Philippines) is always in constant coordination with the police. This way, the groundwork, that is the gathering of all the essential evidence that would be needed in court, is guided by a legal mind who knows what shall hold water and what shall not. A coordinated effort also results in the protection of the integrity of evidence as well as eliminate fruitless energy spent in chasing evidence that would either prove irrelevant or inadmissible.

Three. Recantation and/or disappearance of witnesses. It can't be helped, whistleblowing and testifying is a listed cause of death and serious injuries in the Philippines and elsewhere. This is why police encounters problems in having a witness sign an affidavit and testify in court without whom their case cannot survive. There are mechanisms in place like the witness protection program, but lets face it, who would want to live the rest of their lives in hiding, away from friends and relatives? Fear of reprisal would keep even brave souls from helping solve a crime or put the perpetrator of a crime behind bars as conscience is supressed by considerations of safety for the self and family.

The third reason I just cited brings me to the other subject included in the title of this post which is, the value of the tipster and turning state witness. An anonymous call more often than not provide the lead that has been prayed for by law enforcers in a stymied case, one where the trail of the criminal has gone cold. The tipster gives vital information that brings the police to any of the following: place of the crime, body of the crime or evidence that would inevitably name the perp and link him to the crime. Because of his chosen anonymity, the tipster can never be presented in court but he provides, through the information he gives, leads for police to secure witnesses or evidence that can stand legal scrutiny.

A close cousin of the anonymous tipster is the suspect turned state witness. There are actually two kinds, I call them the "voluntary" and the "involuntary" types based on the initial reasons that turn them into one.

The "involuntary" or reluctant state witness* is the suspect who has been caught and makes a deal with the prosecution in order to lighten his sentence or even be totally discharged (i.e. dropped from the information to testify against his co-perpetrators, this, however, would require court approval). If he is the least guilty and has testimony without which there can be no succesful prosecution of the case, then he can qualify to be discharged.

The other one, the one who "volunteers" information but unlike the anonymous tipster, shows himself or gives himself up is the result of paranoia. The criminals, in their desire to cover their tracks begins to eliminate all who might have knowledge of their misdeeds including accomplices. They fear that one of them might eventually squeal and on the other hand, the others also fear that they might be killed for suspicion of squealing on their cohorts. Paranoia, apart from conscience, drives these "voluntary" state witnesses and more often than not leads to the unraveling of a crime.

There is no such thing as a perfect crime but with the advent of modern forensics as well as effective use thereof and bettter partnership between law enforcers and prosecutors, pehaps the adage crime does not pay would would have more relevance in our country.

*The term "state witness" is used generally but in Philippine legal parlance, this refers to an accused who is discharged from the Information or charge, following certain requirements or requisites, to become witness for the prosecution.

Wanted: Media-savvy Lawyer

The legal profession involves many facets but in the world of highly controversial case, no where has the battle for the hearts and minds of the public as part of the legal strategy been more pronounced than in these days of media frenzy.

More than celebrities, lawyers in high-profile cases or those with high profile clients hug the same headlines and television blurbs that are usually reserved for PR men, publicists and spokespersons. Perhaps it is a recognition that it is not just in the courtroom that battle lines are drawn in a legal conflict but also in the bar of public opinion. Thus, lawyers must sharpen not just their litigation skills but public speaking as well and he must hone this in all media formats: radio, television and the newspapers.

Today, the statement: "You can talk to my lawyer" takes on different dimensions as media men hungry for comments may just have to deal with these lawyers-spokesmen instead of the real deal.

Just like Atty. Adel Tamano, lawyer for beseiged businesswoman-doctor Vicky Belo, who has had his share of the media limelight in the wake of the Katrina-Hayden Kho sex video scandal. Articulate and easy on the eye, he has become the "knight in shining armor" for the lady doctor parrying all negative news potshots taken at his client being more often than not in the daily news broadcasts.

Does this mean counsels must now be as adept as Pres. Obama in dealing with the press? Maybe, maybe not but one should not forget, in litigation evidence speaks for themselves and no matter how suave and media-savvy a lawyer might be, his case may rise or fall based therein.

That Doubl-Edged Sword

Cross-examination is a powerful tool in litigation. Not only is it essential in testing the truthfullness of the testimony of a witness, it can also be used, if done with great skill, to bring out facts that otherwise would not be available to the opposing party against whom such witness is being presented. But while it is mighty in the hands of the able counsel who wields it well, it can be a double-edged sword that could prove to be a time bomb that explodes in the face of the cross-examining attorney who does not know that most of the time, less is more in this case.

You see there are many pitfalls and hidden traps in cross-examination, one of which is instead of weakening your opponents case, it could instead stregnthen it or provide the details that was otherwise overlooked during the direct examination. For a skilled lawyer, a flawed cross-examination by his opponent may give him the oppourtunity, through re-direct examination, to present a fact that was included in the direct exam. Or it may allow the witness to explain what seemed to be implausible during the direct. Which is why more famous lawyers with vast experience would advise that in cross-examination it is best to keep it simple, brief and when the punchline has been delivered, stop. Know when you have already pushed your luck because you just might turnout to be manna from heaven for your opposing counsel.

The Day of 360 degrees turn, etc.

Its been exactly s_ _ _ _ _ years, two month and ten days since I got the call from my cousin that my name got into the magic circle of 4ooplus that joined the ranks of lawyers for the year 200_.


What has happened since then has been a series of life changes that has seen me metaphorse from a girl of simple dreams to one for whom a whole new life beckoned. For all the hype, it cannot be denied that entering the field of law brings with it a whole lot of new persepectives.


Am I speaking in English here? Well, let's try to simplify things. For one thing, I became more vigilant of my rights as a result of speaking up and defending the rights of others. It made me also appreciate more the values of rules and norms, and coming from one who always tries to find loopholes in everywhere, that is saying much. In a just and orderly society, laws not only bring order and organization but it becomes the great equalizer bringing both benefits and punishment irregardless of class or race. Ideally that is and more often than not happens more on paper than in reality. It has been said that we are a nation of great laws yet fails miserably in implementation. But still, my experience has shown that when you know the law, the less likely will people trample on your rights. Knowledge indeed is power and nowhere is it more lodged than in lawyers who have the law on their "fingertips" (words of a law professor).

But more than the power that goes with the profession, there is no satisfaction that can equal a case won that brings such sighs of relief and even happiness to your clients. Land seemingly lost is recovered, an acquittal is scored for unjust charges, and support is legally-obliged from a dead-beat father and husband for a mother and her children. This is the purpose that sprinsg from the law profession, one that all lawyers must not lose sight of, to have all respect the rights of others and the rule of law.

So how far have I gone since that self-defining day? I'm mellowed down somehow from the initial litigous "mania" that comes with all neophyte men of law but I have not forgotten that despite all the heckles, lawyer-jokes and sometimes undeserved bad publicity, I still truly believe that the law is one noble profession indeed.

The beginning

So how should a lawyer's blog look like? What should she write about that doesn't violate any of the ethical standards she's bound to follow as well as not compomise the attorney-client confidentiality?

First and foremost, this blog is anonymous and all of my posts will be counched in a way that even though some of you out there know my real identity, it would not be possible to guess the personalities involved in my entries so the confidentiality problem is taken cared of. As for future content, let's take it a day at a time. Actually, I decided to create another blog because so many things have come up in my practice that I wanted to write about and post yet the distinct character of my present blogs would make these things look so out of place there. So here is finally a place where I can put all my lawyer-ly musings. For now, my mind's a blank so let's wait a few days for my next entry. So, ciao for now...