By William Casis | FilAm Star Correspondent
US Marine Lance Corporal Joseph Scott Pemberton urged the Court of Appeals to reverse its earlier ruling and acquit him of the homicide charge in connection with the death of Filipino transgender Jeffrey “Jennifer” Laude.
The Olongapo City Regional Trial Court, Branch 74, convicted Pemberton in December 2015 and imposed a jail term of six to 10 years.
In a motion for reconsideration, Pemberton through lawyer Rowena Garcia-Flores, appealed for the CA to consider the privileged and ordinary mitigating circumstances in imposing the penalty should the appellate court sustain his conviction.
Garcia-Flores said an effect of an ordinary mitigating circumstance is that the minimum period in case of divisible penalty provided by law for a particular crime shall be imposed. On the other hand, she said the effect of a privileged mitigating circumstance is that the penalty to be imposed shall be lower by one or two degrees than that provided by law for the crime.
In this case, Garcia-Flores said the privileged mitigating circumstance is the incomplete self-defense. She said the ordinary circumstances are Pemberton’s voluntary surrender and no intention to commit so grave a wrong.
Pemberton also lamented that the appellate court has “cherry-picked” the evidence to sustain his conviction. He said all contrary evidence were completely ignored.
The motion emphasized that the testimonies of Marine Lance Corporal Jairn Michael Rose and Marine Sgt. Christopher Miller never mentioned that Pemberton admitted killing Laude. It said that Pemberton’s statements to the two colleagues were mere conjecture because he did not know what happened to Laude.
“This Honorable Court, with due respect, erroneously ignored the implication in Rose’s testimony that Laude may have been merely unconscious when Pemberton left him at the motel (“choked him until he stopped moving and then dragged into the bathroom. At that point, he left and then took a cab back to the sea port”). It also disregarded the implication that Pemberton did not drown Laude and did not dunk his head into the toilet bowl,” read the motion.
Pemberton also claimed that the CA disregarded the evidence that another person could have entered the room after Pemberton left the lodge.
He contended the CA disregarded the fact that Pemberton voluntarily surrendered to his superior even before a warrant for his arrest was issued. He said the CA’s conclusion that Pemberton ensured Laude’s death before he left the lodge has no basis.
The motion likewise pointed out there was no evidence that Laude was already dead when Pemberton left the place or that he dunked Laude’s head into the toilet bowl. It added that one of the witnesses even admitted that when Pemberton left, he still found Laude unconscious.
Pemberton stressed that the CA ignored other important evidence such as the necklace that Laude was clutching with a third set of DNAs, the missing money, different position of Laude from that of Pemberton’s description, among others.
“Here, the picture formed by the prosecution is neither convincing nor is it complete. It was not able to prove that when Pemberton left Laude, the latter was already dead. The Prosecution further failed to prove that no one else could have killed Laude, as the evidence undeniably proves that there was an intruder whose DNA was left on Laude’s neck; who stole Laude’s money; and whose necklace was left in the hand of Laude. The circumstantial evidence cannot be said to form an “unbroken chain” that “excludes all other [suspects]” but Pemberton.”
In the same motion, Pemberton asked that in case his conviction is affirmed, aside from lowering the imposable penalty, the amount of damages awarded for “loss of income” should be reduced considering that the current minimum wage in Zambales is PHP 349 a day.