DNA Evidence as Dispenser of Justice

DNA Evidence as Dispenser of Justice

By Judge Eliza B. Yu, LLM, DCL

Recently, Associated Press reported that DNA cleared Nevada woman suspected with murder who was imprisoned for 35 years. Washoe District court in Reno, Nevada ordered the release of criminal suspect Cathy Woods, who is 64 years old, accused of slitting victim Michelle’s throat. New DNA evidence recovered from the 1976 crime scene on the edge of the UNR campus matched to that of a former Oregon inmate extradited recently to California to face murder charges in a string of killings in the San Francisco Bay Area during the same period. The FBI said that the DNA found on a Marlboro cigarette butt at the Reno crime scene suggested the real killer is Rodney Halbower, a former Oregon inmate recently charged in the deaths of two women who were among five victims in the "Gypsy Hill" murders in Northern California about the same time Mitchell was killed. Washoe County District Attorney’s Office dropped the criminal case due to DNA evidence. It did not blame police, prosecutors and juries for sending Woods to prison because they didn't have the incredible tool of DNA.

DNA (deoxyribonucleic acid) is a carrier of genetic information for all known forms of life. It is a nucleic acid that consist of two biopolymer strands coiled around each other to form a double helix. The two DNA strands are composed of nucleotides. Each nucleotide is composed of either guanine (G), adenine (A), thymine (T), or cytosine (C). In Herrera v. Judge Vilches and Alba, G.R. No. 148220, June 15, 2005, DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA profile can determine his identity. DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.

In 1962, James Watson, Francis Crick, and Maurice Wilkins jointly won the highly coveted Nobel Prize for having discovered the structure of the DNA, the “secret of life.” Now the terms genetic engineering and genetically-modified organisms (GMO) have become popular terms in both plant and animal improvement and in biology as a whole. Cloning has also been exploited as a theme in the production of movies. But all these started with 1

Mendel (Who is and What did Gregor Mendel Contribute to the Science of Genetics by Ben G. Bareja on January 2012). Gregor Mendel, father of genetics, through his work on pea plants, discovered the fundamental laws of inheritance. He deduced that genes come in pairs and are inherited as distinct units, one from each parent. Mendel tracked the segregation of parental genes and their appearance in the offspring as dominant or recessive traits. He recognized the mathematical patterns of inheritance from one generation to the next. Mendel's Laws of Heredity are usually stated as: 1) The Law of Segregation: Each inherited trait is defined by a gene pair. Parental genes are randomly separated to the sex cells so that sex cells contain only one gene of the pair. Offspring therefore inherit one genetic allele from each parent when sex cells unite in fertilization; 2) The Law of Independent Assortment: Genes for different traits are sorted separately from one another so that the inheritance of one trait is not dependent on the inheritance of another; 3) The Law of Dominance: An organism with alternate forms of a gene will express the form that is dominant. The genetic experiments Mendel did with pea plants took him eight years (1856-1863) and he published his results in 1865. During this time, Mendel grew over 10,000 pea plants, keeping track of progeny number and type. Mendel's work and his Laws of Inheritance were not appreciated in his time. It wasn't until 1900, after the rediscovery of his Laws, that his experimental results were understood (DNA from Beginning Blog funded by Josiah Macy, Jr. Foundation, Cold Spring Harbor Laboratory, 2002 – 2011 copyright).

The U.S. Department of Justice observed that for the past decade, there has been great advances in a powerful criminal justice tool: deoxyribonucleic acid, or DNA. DNA can be used to identify criminals with incredible accuracy when biological evidence exists. By the same token, DNA can be used to clear suspects and exonerate persons mistakenly accused or convicted of crimes. In all, DNA technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system.

DNA as evidence could have been an important tool in the trial of the Vizconde massacre. To recall, on January 6, 2000, Judge Amelita Tolentino rendered her Decision by finding accused Hubert Webb, Peter Estrada, Hospicio Fernandez, Michael Gatchalian, Antonio Lejano II and Miguel Rodriguez guilty beyond reasonable doubt of the crime of rape with homicide with the penalty of reclusion perpetua and ordered to indemnify the Vizconde family Php 3 million for the murders. Former Parañaque City policeman Gerardo Biong was found guilty as an accessory for burning bedsheets and tampering with other evidence in the crime and he was sentenced to eleven years in prison.

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The Court of Appeals' Third Division voted 3-2 to deny accused – appellant Webb's motion for reconsideration and upheld the ruling of Judge Amelita Tolentino on December 16, 2005.

In People v. Hubert Webb, G.R. No. 176864, December 14, 2010, Separate Concurring Opinion by Justice Maria Lourdes Sereno (now Chief Justice), she opined: As discussed in the preceding section, the accused’s right to access to evidence necessitates in the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. When the prosecution is called upon not to suppress or alter evidence in its possession that may benefit the accused, it is also necessarily obliged to preserve the said evidence. To hold otherwise would be to render illusory the existence of such right. The advent of DNA technology prompted this Court’s promulgation of the New Rules for DNA Evidence. As DNA evidence provides objective proof of identification and may be obtained from evidence left in the scene of the crime or in the victim’s person, it also gives new meaning to the above duty of the prosecution. The prosecution did not fare well when measured against this standard. Alfaro testified that the group had earlier agreed that Webb would be the first to rape Carmela. When Alfaro said she saw Webb pumping Carmela, while two bloodied bodies were on top of the bed, the former was so shocked that she “stepped back and turned around to go outside.” On her way out, she met Ventura near the door. He said, “Prepare escape.” Things had apparently gone awry, so they left the place. The NBI proclaimed that the semen samples they had collected from Carmela were preserved in slides and remained intact. Thus, in order for the prosecution’s theory to be consistent, pursuant to the quantum required in criminal cases, the DNA evidence in the slides must positively match that from accused Webb. Based on the foregoing circumstances, the defense counsel accordingly filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis during the course of the trial. Several exchanges of pleadings on the matter were filed before the trial court, and at no time was the timeliness of the filing of the Motion at issue. It could not have been, considering that the Motion was timely filed during the course of the trial. While the Motion was filed six years after the crime was committed, the trial of the accused herein did not start until more than four years after the commission of the crime. The trial court denied the Motion on 25 November 1997, holding that since more than six (6) years had lapsed since the commission of the crime, there was no assurance that the semen specimen remained uncontaminated. Also, the trial court held that Webb was not able to show that the proper procedure for the extraction and preservation of the semen sample had been complied with. Finally, the trial court held that a DNA test would only lead to confusion of the issues. However, as correctly held by Justice Lucenito Tagle in his Dissenting Opinion, the trial judge’s objections to the DNA testing were based on mere conjectures that ran against the presumption of regularity in the performance of official duty. Meanwhile, the idea that a negative DNA test result would not have necessarily exculpated Webb, because 3

previous sexual congress by Carmela with another man prior to the crime could not be discounted, would unrealistically raise the bar of evidence – and for the wrong party, i.e., for the part of the defense, instead of for the prosecution. If a negative DNA test result could not be considered as providing certainty that Webb did not commit the crime, would it not have at least cast a reasonable doubt that he committed it? Moreover, the argument against the relevance of the semen sample – that the presence of semen was not necessary to prove that rape was committed – is not in point. What the defense was after when it sought DNA testing was neither to prove nor to disprove the commission of rape, but to pinpoint the identity of the assailant. In this case, semen with spermatozoa was in fact obtained, and it did possess exculpatory potential that might be beneficial to the accused. In Tijing v. Court of Appeals, we held that “courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.” Hence, it is the constitutional duty of the trial judge to afford all possible means to both the NBI and the counsel for accused, in order that such evidence may be scrutinized in open court. The Court held in People v. Yatar: DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, o saliva which can be left on the victim’s body or at the crime scene. Hair and fiber from clothing, carpets, bedding or furniture could also be transferred to the victim’s body during the assault. Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime. Thus, when the present case reached this Court and a similar Motion was filed, we resolved to grant petitioner’s motion to allow DNA testing of the semen sample collected from the victim in order to compare it with Webb’s DNA. Unfortunately, said semen sample appears to have been lost by the NBI, which had custody thereof. Does the prosecution’s loss of this potentially exculpatory evidence result in a fundamentally unfair trial of the accused that entitles him to a judgment of acquittal? In resolving this question in the negative, the Dissent cites Youngblood v. Arizona, a United States Supreme Court Decision, which held that the prosecution’s failure to keep intact a piece of potentially exculpatory evidence does not result in a due process violation, unless the accused is able to show that the prosecution acted in bad faith. However, reliance on Youngblood is ill-advised. First, Youngblood was promulgated more than two decades ago, in 1988, when DNA testing was still in its infancy. Since then, the technology has grown by leaps and bounds. In the United States, there are now only eight (8) states that have not adopted statutes allowing post-conviction DNA testing, with some 4

requiring the correlative duty to preserve DNA evidence. So far, 261 convicts in the United States have been exonerated as a result of post-conviction DNA testing. Second, Youngblood was not a product of a unanimous Decision. The majority opinion in Youngblood was penned by Justice Rehnquist and concurred in by Justices White, O’Connor, Scalia and Kennedy, with Justice Stevens concurring with the result and writing a Separate Opinion. Justice Blackmun wrote a strong Dissent, which was joined in by Justices Brennan and Marshall. A critique of the Youngblood decision points out that there are two competing due process interests therein. On the one hand is adjudicative fairness, which “seeks to ensure that the accused receives meaningful protection in court, in other words, reliable fact finding and a fair trial and which manifests itself in an assessment of the materiality of evidence and prejudice to the accused …as paramount in determining whether a due process violation has occurred.” On the other hand is instrumentalism, which seeks “to impose restraints on the state by punishing the state for police and prosecutorial misconduct to deter future misconduct and to create a prophylactic effect. In measuring the misconduct, one examines the subjective intent of the officer and whether the officer acted in good faith or bad faith. Under this approach, the focus is on the state, not the individual. Moreover, the focus on the state and on deterring official misconduct invites an examination of the costs of providing additional process.” The majority opinion in Youngblood focused on the state of mind of the police officer rather than on materiality and fairness to the accused. However, in his Separate Opinion wherein he registered his reservation to the bad faith standard being laid out by the majority, Justice Stevens recognized that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." While the earlier case Brady v. Maryland held that due process violation could be committed even without bad faith, the majority distinguished Youngblood from Brady by holding that the evidence in Brady was clearly favorable to the accused, while that in Youngblood was only potentially exculpatory. Justice Blackmun opined, though, that it was impossible for the accused to prove that a particular piece of evidence was exculpatory when, precisely, it was no longer in existence. Justice Blackmun also disapproved of the bad-faith standard, because “apart from the inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith, the line between ‘good faith’ and ‘bad faith’ is anything but bright, and the majority’s formulation may well create more questions than it answers.” Justice Blackmun proposed the following alternative to the bad-faith standard: Rather than allow a State’s ineptitude to saddle a defendant with an impossible burden, a court should focus on the type of evidence, the possibility it might prove exculpatory, and the existence of other evidence going to the same point of contention in determining whether the failure to preserve the evidence in question violated due process. To put it succinctly, where no comparable evidence is likely to be available to the defendant, police must preserve physical evidence of a type that they reasonably should know has the potential, if tested, to reveal immutable characteristics of the criminal, and hence to exculpate a defendant charged with the crime. Justice Blackmun then gave his opinion on how to balance the defendant’s rights 5

and the duty imposed upon the law enforcement to preserve evidence: Due process must also take into account the burdens that the preservation of evidence places on the police. Law enforcement officers must be provided the option, as is implicit in Trombetta, of performing the proper tests on physical evidence and then discarding it. Once a suspect has been arrested, the police, after a reasonable time, may inform defense counsel of plans to discard the evidence. When the defense has been informed of the existence of the evidence, after a reasonable time, the burden of preservation may shift to the defense. There should also be flexibility to deal with evidence that is unusually dangerous or difficult to store. Third, it is not amiss to note that in the year 2000, the injustice of the Youngblood decision was brought into sharp relief when more sophisticated DNA technology was used on the degraded evidence. The technology yielded a DNA profile that (1) exonerated Larry Youngblood of the crime charged (child molestation, sexual assault and kidnapping) and (2) enabled the police to find the real offender. Excerpts from the website of The Innocence Project, an organization advocating the use of DNA evidence, are as follows: Larry Youngblood was convicted in 1985 of child molestation, sexual assault, and kidnapping. He was sentenced to ten years and six months in prison. In October 1983, a ten year old boy was abducted from a carnival in Pima County, Arizona, and molested and sodomized repeatedly for over an hour by a middle aged man. The victim was taken to a hospital, where the staff collected semen samples from his rectum as well as the clothing he was wearing at the time of the assault. Based on the boy’s description of the assailant as a man with one disfigured eye, Youngblood was charged with the crime. He maintained his innocence at trial, but the jury convicted him, based largely on the eyewitness identification of the victim. No serological tests were conducted before trial, as the police improperly stored the evidence and it had degraded. Expert witnesses at trial stated that, had the evidence been stored correctly, test results might have demonstrated conclusively Youngblood’s innocence. Larry Youngblood appealed his conviction, claiming the destruction of potentially exculpatory evidence violated his due process rights, and the Arizona Court of Appeals set aside his conviction. He was released from prison, three years into his sentence, but in 1988, the Supreme Court reversed the lower court’s ruling, and his conviction was reinstated (Arizona v. Youngblood, 488 U.S. 51). Youngblood remained free as the case made its way through the Arizona appellate court system a second time, but returned to prison in 1993, when the Arizona Supreme Court reinstated his conviction. In 1998, Youngblood was released on parole, but was sent back to prison in 1999 for failing to register his new address, as required by Arizona sex offender laws. In 2000, upon request from his attorneys, the police department tested the degraded evidence using new, sophisticated DNA technology. Those results exonerated Youngblood, and he was released from prison in August 2000. The district attorney’s office dismissed the charges against Larry Youngblood that year. Shortly thereafter, the DNA profile from the evidence was entered into the national convicted offender databases. In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to twenty-four years in prison. In view of all the foregoing salient objections to Youngblood, 6

it should not be adopted in this jurisdiction. While it is a laudable objective to inquire into the state of mind of the prosecution and punish it when it has committed prosecutorial misconduct, there are times when, undoubtedly, whether through malice or plain ineptitude, its act or omission results in plain injustice to the accused. In our various decisions relating to interlocutory orders and incidents pertaining to this case, this court’s adherence to instrumentalism has led to our finding in each instance that there was no due process violation committed against petitioner, because bad faith was not shown by the prosecution or the trial judge. However, since “the task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who appear before or are brought to the bar of justice are afforded a fair opportunity to present their side,” the measure of whether the accused herein has been deprived of due process of law should not be limited to the state of mind of the prosecution, but should include fundamental principles of fair play. Hence, as we write finis to this case, it is time we evaluate the total picture that the prosecution’s acts or omissions have wrought upon the accused’s rights with each seemingly innocuous stroke, whatever its intention may have been. The various violations of the accused’s rights have resulted in his failure to secure a just trial. As such, the judgment of conviction cannot stand.

The trial court denial of the Motion to Direct NBI to Submit Semen Specimen to DNA Analysis during the course of the trial on the following grounds: (1) since more than six (6) years had lapsed since the commission of the crime, there was no assurance that the semen specimen remained uncontaminated; (2) the accused Webb was not able to show that the proper procedure for the extraction and preservation of the semen sample had been complied with; (3) a DNA test would only lead to confusion of the issues can be considered as rational bases. There is a possibility of tampering of DNA evidence since many years have lapsed before moving for its testing by the defense. It should be noted that on public records, during the trial of the Vizconde massacre, Lolita Birrer, a former live-in partner of policeman Gerardo Biong, accused as an accessory, narrated the manner of how the latter investigated and tried to cover up the crime. She testified that she had accompanied policeman Gerardo Biong to the Vizconde’s house to destroy the evidence and to retrieve accused Webb’s jacket and the murder weapon. She also testified that he received money at a house that she later learned belonged to then Parañaque Congressman Freddie Webb.

In 2010, former Parañaque City cop Gerardo Biong walked free from the New Bilibid Prisons (NBP) in Muntinlupa City after serving a 12 – year sentence. he actually stayed 15 years in jail, 13 in the NBP, after being arrested in 1995. In Supreme Court En Banc 7

resolution dated April 20, 2010 in the same criminal case, it modified the penalty of Gerardo Biong who is an accessory to the crime. Accused-appellant Biong is sentenced to an indeterminate prison term of six (6) years of prision correctional, as minimum, to twelve (12) years of prision mayor, as maximum, and absolute perpetual disqualification under Article 58 of the Revised Penal Code. Among trial experts, the Supreme Court’s modifying the sentence not exonerating him from the charge, it meant that there was a cover – up committed by him.To trial experts, only the rich people can afford to bribe a policeman for cover – up of heinous crimes. Thus, the criminal angle of Akyat Bahay gang (burglars) is suspicious.

In the Dissenting Opinion by Justice Martin Villarama Jr., he argued that the claim of Webb that he could not have committed the crime because he left for the United States on March 9, 1991 and returned to the Philippines only on October 26, 1992 was correctly rejected by the Regional Trial Court and Court of Appeals. Given the financial resources and political influence of his family, it was not unlikely that Webb could have traveled back to the Philippines before June 29–30, 1991 and then departed for the US again, and returning to the Philippines in October 1992. Webb's travel documents and other paper trail of his stay in the US are unreliable proof of his absence in the Philippines at the time of the commission of the crime charged. Webb's reliance on the presumption of regularity of official functions, stressing the fact that the US-INS certifications are official documents, is misplaced. The presumption leaned on is disputable and can be overcome by evidence to the contrary. In this case, the existence of an earlier negative report on the NIIS record on file concerning the entry of appellant Webb into and his exit from the US on March 9, 1991 and October 26, 1992, respectively, had raised serious doubt on the veracity and accuracy of the subsequently issued second certification dated August 31, 1995 which is based merely on a computer print-out of his alleged entry on March 9, 1991 and departure on October 26, 1992. He noted that the alleged Passport, Passenger Manifest of United Airlines Flight and United Airline ticket of accused Webb offered in evidence were mere photocopies of an alleged original, which were never presented. He adds, this Court takes judicial notice of reported irregularities and tampering of passports in the years prior to the recent issuance by the Department of Foreign Affairs(DFA) of machine-readable passports.

To trial experts, the note verbale from the United States Embassy in Manila claiming that accused Hubert Webb entered the United States in March 1991 and left in October 1992 which coincided with his passport and Philippine Immigration records has a little probative value because it is subject to doubt. Any certification can be secured easily and / or with pay by any powerful government official in the Philippines. The public perception is that 8

the accused Hubert Webb’s father was a Senator who has money, influence and power to get any certification as a self – serving proof since the signatories did not know personally the accused, did not see him or talk to him at the U.S. prior to the execution of the certification.

The Supreme Court did not appreciate the fact that the two of the accused who are Joey Filart and Artemio Ventura remained fugitives from justice, a behavioral proof that flight is an evidence of guilt as a general rule in trial courts.

The Supreme Court is not a trier of facts in appealed cases. The appreciation and findings of facts as well as the assessment of the testimonies of the witnesses by a trial court are given weight. There was no showing that Judge Amelita Tolentino convicted all the accused with grave abuse of discretion and with manifest bias, hostility or passion considering that the criminal case, dubbed as the trial of century, was under the watchful eyes of the media.

GMA News TV reported on December 14, 2010 that after 15 years in prison, accused Hubert Webb, Antonio Lejano, Michael Gatchalian, Miguel Rodriguez, Hospicio Fernandez and Peter Estrada walked free upon the reversal of the trial court and appellate court decisions by the Supreme Court.

The sentence of the accused Hubert Webb et al. was Reclusión perpetua that is an indivisible penalty fixed at 40 years and cannot be altered during sentencing under the Revised Penal Code.

On November 26, 2010, private complainant Lauro Vizconde voiced his concern to media about the purported lobbying of Senior Associate Justice Antonio Carpio for the reversal of the guilty verdict who testified for the defense during the trial. The Volunteers Against Crime and Corruption (VACC) asked Justice Antonio Carpio and his cousin Justice Conchita Carpio-Morales to take a leave while the case is being decided to avoid undue influence on the court's decision. This was categorically denied by the Supreme Court as Justice Carpio had in fact inhibited himself from the case and was not going to take part in the deliberation. When the Supreme Court Decision was handed down to reverse the conviction of the accused – appellants, Lauro Vizconde was quoted by the media saying, "Is there still anyone among you who doubts that there is rampant corruption in our government? Remember when I made the disclosure that someone is pressuring the 9

justices to vote for a reversal? I did that hoping to make them have second thoughts about doing so.” “There is no justice in the Philippines. All of us who have cases in court, don’t we realize that if your opponent has money, brace yourself. Anyone can be paid!" On January 24, 2012, Inquirer reported that Lauro Vizconde has decided to appear in the impeachment trial of Chief Justice Renato Corona to discuss the details of a private meeting with him in September 2010. He said that during this meeting Corona told him about the alleged efforts of Senior Associate Justice Antonio Carpio to pressure (binabraso) colleagues to vote for the acquittal of Hubert Webb, son of former Senator Freddie Webb. Chief Justice Renato Corona reportedly told him and Dante Jimenez to expect a decision in three to four months and said the following words: ‘Talagang binabraso at iniimpluwensyahan ni Carpio ang kanyang mga kasama para mapawalangsala si Webb,’ or words to that effect” translated in English to be “Carpio is resorting to arm-twisting to influence his colleagues to acquit Webb”.

If only the DNA evidence was submitted immediately at the prosecutor’s office and presented earlier before the trial court, the public will not entertain doubt with the acquittal of the accused Hubert Webb et al. by the Supreme Court.

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