Saturday, March 18, 2017

Berteni "Toto" Cataluña Causing: VERY BIG SUCCESS: I WON A PETITION FOR BAIL FOR 2 ...

Berteni "Toto" Cataluña Causing: VERY BIG SUCCESS: I WON A PETITION FOR BAIL FOR 2 ...: Privilege Spits By ATTY. BERTENI CATALUÑA CAUSING, CE VERY BIG SUCCESS: I WON A PETITION FOR BAIL FOR 2 POLICEMEN BY DESTROYIN...

VERY BIG SUCCESS: I WON A PETITION FOR BAIL FOR 2 POLICEMEN

Privilege Spits
By ATTY. BERTENI CATALUÑA CAUSING, CE

VERY BIG SUCCESS:
I WON A PETITION FOR
BAIL FOR 2 POLICEMEN
BY DESTROYING THE PRESUMPTION
OF REGULARITY
CLAIMED BY PDEA AGENTS


This is about how did I destroy the presumption of truth enjoyed by agents of the Philippine Drug Enforcement Agency(PDEA) in Region 12, or in Cotabato Region.

I am elated today (2017-03-18) after reading the text messages coming from my clients saying that I won the petition for bail for them that I have just fought hard against agents of the PDEA Region 12 at the RTC of General Santos City, Branch 23, in a manner that was so beautiful.



As the conclusion of that fight for justice, the Gensan RTC granted the petition for bail that I fought for the two (2) policemen charged by PDEA agents with selling a sachet of shabu inside a room at the Peaceful Lodge (motel).



During the presentation of the poseur buyer agent, through tactically-designed cross-examination questions, I succeeded in eliciting an admission from the said poseur buyer that the two policemen came inside Room 31 of Peaceful Lodge in plain t-shirts and ordinary maong pants and not wearing jacket.



So that I asked the alleged poseur buyer how it happened that three lighters, two toters and one .45 pistol were claimed by PDEA agents to have been seized from them when the poseur buyer did not notice any bulge?



The alleged poseur buyer did not offer any explanation.



I also questioned the poseur buyer and one of the arresting officers why was it that the inventory and photography of seized drug evidence was done in the office of PDEA Region 12 and not inside Room 31 of Peaceful Lodge, the site they claimed where they arrested the two policemen and seized shabu.


The agents answered that they conducted the inventory and photography at Room 31 at first but completed the same inventory and photography at the PDEA office.



I told them that the law, Section 21 of RA 9165, requires for the agents to conduct the marking of seized evidence, the inventory and the photography right away at the place of arrest and seizure of illegal drugs.


So I asked them to explain why they did not complete the the inventory and photography started at the scene, inside Room 31.


They explained that they were afraid of "resbak" because they found out that the persons they arrested were policemen so that they transferred the conduct of the inventory and photography.
 The Supreme Court repeatedly declared that if the agents of the law failed to give a satisfactory explanation for the delay, then it is presumed that the illegal drugs were not taken from the accused.



In much earlier questions, without giving a hint that I would ask about the security of the agents against outside threats, I solicited answers from the same agents that there were 14 of them operating at Peaceful Lodge and that 11 of them were fully armed with long automatic firearms surrounding the perimeter of the lodge.


So that when I asked them to explain why they should be afraid of "resbak" when they were plenty surrounding the lodge and that they were using long and automatic firearms. They failed to answer.



These unanswered questions asking for explanations were indications that the agents were not telling the truth.


The theory that they lied became all the more established when PDEA agents also failed to explain whey they did not wait for the witnesses (a media representative, a DOJ representative and an elected official) to arrive before conducting the inventory and photography.



The weakness of PDEA agents' evidence became all the more exposed when they failed to explain why they had to destroy the door of Room 31 just to arrest the seller of the illegal drug if indeed they were telling the truth that the agreement to sell and buy shabu occurred?


 I pointed out that it was illogical for destruction of the door to occur in the face of the claim that the accused agreed for them to come in to buy shabu.



 These PDEA agents again failed to explain.



The biggest point that I got from the circumstances is when the prosecution and the agents failed to submit to the Court the cellular phones allegedly taken from the policemen clients.



I have demanded for the production of these cellular phones since September of 2016 from the Office of the City Prosecutor because the agents claimed they seized the same cellular phones of the accused during the buy-bust operation.


The agents also claimed that their confidential informant contacted the accused through the cellular phones to come to Room 31 of Peaceful Lodge to sell a sachet of shabu.


Because I know there were no such exchanges of messages to transact to sell shabu, I vigorously demanded from the agents and the Office of the City Prosecutor to surrender the cellular phones to the court and the Court will open and read the messages if only to know whether there were messages about transacting to sell illegal drugs.



The Court issued an order for the prosecutor and the agents to submit the cellular phone.


Instead of complying the directive, the Office of the City Prosecutor submitted a letter telling the Court that the cellular phones can no longer be found.



I then moved for the Court to declare that if only these cellular phones could be produced the messages there inside are favorable to the accused that the messages did not talk about selling of shabu but about a date for a sex with a new "Japayuki" at Room 31.



I argued that if the accused have been the ones who were consistently demanding for the production of cellular phones evidence and if these cannot be produced in court by the prosecutor that admitted having received the same cellular phones during the preliminary investigation, then the failure to produce can now be declared as a circumstance giving the presumption that if only these cellular phones could be opened the messages there inside will favor the party demanding for the production.



One more, I pointed out during the impromptu FINAL CLOSING ORAL ARGUMENT that the PDEA agents concerned did not present their blotter entries concerning the operation that led to the arrest of my clients.



I argued that the only way to believe that the marked money allegedly used by the PDEA agents was indeed genuine for the buy-bust operation is when the same marked money's serial number was recorded in the PDEA blotter at a time before the time of jump off to the field to conduct a buy-bust operation against the accused.



I followed up that it was necessary for the prosecutor to present an orderly PDEA blotter containing coherent entries as to time without skipping any space (laktaw) where one of the entries is the serial number of the marked money used in the buy-bust operation and where the time of entry of the serial number of the marked money is much earlier than the time the agents left their PDEA office.



Because these PDEA agents failed to present their blotter, the presumption then is that the alleged marked money was only a product of fabrication by the agents.



I was too confident I succeeded in destroying the presumption of regularity that was initially enjoyed by the PDEA agents in this case.



The presumption of regularity doctrine says that police officers and PDEA officers are always presumed to be telling the truth if they were to allege matters about the police operations they performed and brought to the courts.



In this case, I believed I succeeded in presenting evidence that destroyed the same presumption of regularity.



I believe that all the above presentations clearly showed that the PDEA agents involved did not observe and did not follow the procedures required by RA 9165 and other laws for them to perform.



Among those that the PDEA agents failed to observe were the manner of conducting inventory and photography, the recording of the marked money in the blotter before jumping to the operations, the marking of evidence that must be done in the scene of arrest and seizure of the same evidence, and many others.



In my opinion article written in my previous Privilege Spits column, I called the same presumption of regularity as very oppressive against the accused.


That was because it is usual that it was difficult to look for evidence just to prove that the police officers or agents had corrupt motives or committed irregular acts.



Indeed, the RTC of General Santos, Branch 23, through Judge Dennis Velasco, gave me the resounding victory for the real and sweet justice, allowing my clients to post bail in the amount of P400,000 each accused.

Monday, March 13, 2017

Berteni "Toto" Cataluña Causing: Presumption of Regularity: Oppressive to the Accus...

Berteni "Toto" Cataluña Causing: Presumption of Regularity: Oppressive to the Accus...: Privilege Spits By Atty. Berteni C. Causing Presumption of Regularity: Oppressive to the Accused If Filipinos would read t...

Presumption of Regularity: Oppressive to the Accused

Privilege Spits
By Atty. Berteni C. Causing


Presumption of Regularity:
Oppressive to the Accused


If Filipinos would read this particular article for Privilege Spits, they would discover that one of the major tools used by the Philippine courts in discovering truth is actually overused and grossly abused.

This tool is called “presumption of regularity.”

Before proceeding with the topic of the week, let this author say that this subject is close to his heart. That is the reason why he wrote the entire article during the entire flight of Philippine Airlines to Manila on 12 March 2017.

This author has been practicing as a lawyer for a long time and he has not used the “presumption of regularity” just to argue that what he would claim is true.  He has many clients who were policemen, NBI and PDEA agents.  In all these cases this lawyer relied on the merits of evidence rather than invoking this presumption of regularity.

This attorney finds this “presumption of regularity” as used in the Philippines as the most presumptuous of all the presumptions of evidence established by the Rules of Evidence and by laws passed by the Congress of the Republic of the Philippines.

By the way, the Rules of Evidence was invented by the Supreme Court.  It can be amended anytime by the Highest Tribunal.    And as a conscientious man of the bar, he undertakes that he will propose to change or modify Section 1 (m) of Rule 131 that says “that official duty has been regularly performed.”

Being too presumptuous, it would be unfair for this lawyer to use “presumption of regularity” argument against the opponents who are actually the ones telling the truth but that they happened to be not lucky to have secured any piece of evidence to prove their assertions or that the nature of the incident was that the opponents cannot have any other evidence except for the words they can give as testimonial evidence.

The experience of this lawyer shows that it is with more reason that this “presumption of regularity” becomes evil, oppressive and discriminatory when used against the accused in a criminal case.

Little do the people know that the biggest oppressor against all accused in any criminal case, particularly cases where the witnesses are government officers, including police officers and other law enforcers, is the concept of the Rules of Evidence called “presumption of regularity.”

Now, what worries this author the most is the fact that the House of Representatives has already approved on third and final reading a bill re-imposing death penalty, although only for offenses on illegal drugs.

If this presumption of evidence is to be used to impose death penalty on any person accused of drug trafficking, it will be the height of irresponsibility for the court that would mete out the sentence and the President and the Congress that made law imposing death if they would still use the abusive “presumption of regularity.”

The law of nature, the law of conscience, and the law of God cannot allow punishing a convicted person with the death penalty if he were convicted with the use of the presumption of regularity.



Evil of presumption of regularity
rejected by new Japanese system



In Japan, the “presumption of regularity” is the only reason why its government decided to modify their trial system from one that is decided by one judge only to one decided by a jury made up of three judges chosen randomly from the pool of judges and six (6) ordinary laymen randomly picked from the community.

The decision to change from the single judge to decide the case to the modified jury to decide was prompted by persistent complaints from Japanese citizens.

The Japanese complained that even if the police there erred in arresting them, the courts still convicted them because the words of the officers who forced the arrested persons to confess to the crimes for which they were arrested were presumed by the courts as true.

That was so given weight by the Japanese courts because of the “presumption of regularity” in the performance of the official functions of the police officer.   

With this system, the words of the arrested civilians who usually had no evidence except for their mouths cannot be given any weight against the words of the police officers who arrested them because of the “presumption of regularity.”

Chief of the complaints of the Japanese community was that even if the police officers who arrested the accused were stammering and showing difficulty when testifying, with this procedure, the testimonies of the accused have become just a formality for the forthcoming conviction. 

The Japanese therefore found “presumption of regularity” as evil that must be exorcised.

An article about Japanese jury system reads:

“Japan, on the other hand, is presently building its own new jury system from the ground up. After nearly five years of debating, testing and refining, Japan’s new Saiban-in (or “lay judge”) system bears only a passing resemblance to its American cousin. Beginning next May (2008), defendants charged with serious crimes will be tried by a panel of six jurors and three judges, sitting together in a single line. Together and by a simple majority, the panel will rule on both guilt and sentencing.”

In an article posted on the website of The Guardian newspaper on August 3, 2009, it reports that first jury trial in Japan was watched with bated breath by the Japanese citizens, which was due to the fact that Japan abolished jury trial in 1928 and it was only this time that it was coming back but modified because it now has three (3) professional judges sitting along with six (6) lay men chosen from the community.

Said by The Guardian, to wit:
“Thousands of Japanese citizens queued outside a Tokyo courtroom today to witness the most radical change to their country's criminal justice system since the second world war with the introduction of trial by jury.”
“Inside, six people chosen at random from millions of voters became the first Japanese people for three generations to decide whether a fellow citizen walks free or pays for his crimes.”
“The jurors – five women and a man – were chosen from a pool of 47 people this morning to take their seats in court later in the day. Their task: to decide an appropriate punishment for Katsuyoshi Fujii, a 72-year-old man accused of stabbing a neighbour to death earlier this year.”
“They and three professional judges at Tokyo district court will sentence Fujii, who has admitted killing 66-year-old Haruko Bun. The lay judges must arrive at a majority decision and have the assent of at least one professional judge for the sentence to stand…”


Examples of application of
‘presumption of regularity’


In one case decided by the Supreme Court, People vs Nathaniel Pasion, Case Number GR No. 203025, January 28, 2015, it explained how the “presumption of regularity” defeated with convenience the defense of the accused that they were just framed up by agents of the law.


The Supreme Court just said that the declarations of the agents of the law as witnesses are considered true just because they were police officers performing the official functions.

“Presumption of regularity” as applied by the Rules of Evidence to government officials’ action is actually vague or that it immediately impresses upon a message that all acts done as official duty have regularly been performed, regardless of the abuses actually committed.

Section 131 sub-paragraph (m) of the Rules of Court of the Philippines defines presumption of  regularity as presuming that “the official duty has been regularly performed.”

This presumption of regularity as used in the standard, tradition and culture in the Philippines has always been the worst enemy of the presumption of innocence.

The Constitution says that the presumption of innocence can only be defeated by proof beyond reasonable doubt.  There is nothing in the Constitution that says that the presumption of innocence can be defeated by another presumption.

Let us take as example cases of buy-bust operations.

In all cases of buy-bust of illegal drugs as claimed by government officers, they present to the court their stories of how they arrested the accused.  You will be amazed by the fact that all officers present stories that led to the arrest having the same plot.

The plot:

(1) That the police used a confidential informant who claimed to be a friend of the accused;
(2) That the confidential informant contacted the accused to entice the accused to sell some sachets of shabu to the confidential informant;
(3) That the accused agreed to sell and he and the confidential informant set the place where the confidential informant will meet with the accused to buy the illegal drug;
(4) That when they met the accused at the meeting place the confidential informant then introduced the officer of the police or PDEA or NBI agent to the accused;
(5) That the accused did not doubt that the new face introduced to him by the confidential informant was not an officer of the law, despite the fear that the sentence if found guilty of selling is life imprisonment;
(6) That the accused with full trust to the stranger police officer handed over a sachet of shabu; and
(7) That after the exchange of the money with the illegal drug the officer then declared arrest.

If you happen to be a lawyer of many accused in cases of buy-bust operations of illegal drugs, you will get that idea that the plot repeated endlessly or in an unlimited manner is not true at all.

However, many convictions have occurred against the accused in buy-bust cases that are actually false buy-bust just because of “presumption of regularity.”

The defense of the accused as insisted by them in their testimonies would always be “frame-up” or that what happened actually was a case of planting of evidence.  But this is always declared as the “weakest evidence” because the Supreme Court has always said that this is the weakest evidence like the defense of alibi and that the presumption of regularity of the declarations of the police or agents has never been overturned.

So many persons have been convicted with the use of this plot of the story because of the “presumption of regularity” on the part of the police officers or other law enforcers.

Because the police operatives are immediately and blindly given the “presumption of regularity,” all their stories even false are pronounced by the courts as true and correct.

So that it is clear that the accused were found guilty not because they are truly guilty.  They are always convicted because of the “presumption of regularity” that makes the courts made the false declarations of the police as true.

The Supreme Court actually gives a chance for the accused to defeat “presumption of regularity.”  However, that chance is gravely insufficient.  The Supreme Court wants that the evidence that must be presented to destroy the “presumption of regularity” must be clear and convincing to show the ill motive of corruption or proofs of irregularity.

By nature, it is impossible to prove irregularity if the police officers happened to be experts in preparing documents to be filed against the persons they arrested for illegal drugs. 

The impossibility to prove irregularity in case the law enforcers are experts liars is borne by the fact that the only evidence of the accused is his word where he would testify that the officers who arrested him asked him money that when he failed to give the case of selling illegal drugs was filed against the accused.  He will always have no CCTV cameras because the law enforcers would ask money when there would be no CCTV camera facing them or there would be no witness.  A whisper by the officer was sufficient to make the demand for money.

Persons actually planted with illegal drug evidence is always at risk of conviction if his defense is that the officers who arrested him just arrested him even he was not caught doing a crime because he will always have no evidence to prove that the officers verbally asked money from him in exchange for freedom.  The officers will always be presumed to be telling the truth.



Let the jury system take over


Jury system does not give weight to the presumption of regularity.

All witnesses presented to the witness stand of the court shall be judged by the jurors depending on how they delivered the testimonies.

The testimonies of the police officers would be considered as true only if the jury says they were telling the truth.

The accused and the law enforcers stand on equal footing in the eyes of the jurors.

Those who will get the belief of the jury are those who truly deliver the testimony with the strong appearance of truth.

If the accused who was implanted with evidence delivered well his truth at the witness stand before the jurors, he will win.


What is your answer?

Saturday, March 4, 2017

Berteni "Toto" Cataluña Causing: Police invented 'cybersex'

Berteni "Toto" Cataluña Causing: Police invented 'cybersex': Police invented 'cybersex' Privilege Spits Column By ATTY. BERTENI CATALUÑA CAUSING Who invented cybersex? ...

Police invented 'cybersex'

Police invented 'cybersex'

Privilege Spits Column

By ATTY. BERTENI CATALUÑA CAUSING


Who invented cybersex?

This has been invented by police officers and agents who have raided several establishments of online marketing.

Those enforcers who raided these places using search warrants obviously obtained through falsification and dishonesty have had the common habit of inventing stories every time they operate on online marketing establishments.

In all cases of their raids on online marketing that I have handled, it has showed that the raiders have been consistent in making it appear that they arrested the employees of the online marketing firms upon the claim that the cops arrested the online marketing employees in the act of committing the crime of cybersex.

I thought deep how can it happen that a crime or crimes of cybersex can be committed by these online marketing employees if they were at least twenty (20) people inside a small room that the police officers or NBI agents raided?

I read the law, Republic Act No. 10175, and it says that cybersex is line "toro" or actual or live performance of sex or live performance of masturbation and it was without physical contact because the sex partner is in the other end of the line.

If this is so, then who among those agents who are insane to perform masturbation in a room when he or she knew that the people inside the room was about twenty (20)?

Moreover, these police officers and NBI agents claimed that THEY ARRESTED THE ONLINE MARKETING AGENTS BECAUSE THEY CAUGHT THESE AGENTS IN THE ACT OF PERFORMING LIVE SEX INSIDE THAT ROOM WHERE AROUND 20 OR 30 PERSONS WERE PRESENT.

How can it happen that the officers can catch these online marketing agents masturbating in front of their computers just to beam the masturbating live to a partner in the other end of the internet line?

Further, ALL COMPUTERS OF THE ONLINE MARKETERS DID NOT HAVE ANY CAMERA.

No wonder that all the raids and searches done by the police ended up rejected by the courts.

The latest incident of dishonesty occurred in Old Balara, Quezon City, which was committed by the team of policemen under the personal supervision and control of the chief of the Special Operations Unit (SOU) of the Quezon City Police District, Supt. Rogarth Campo.
THE AUTHOR WILL STILL ADD MORE TO THIS COLUMN ARTICLE. Those that will be added will be data from the cases that I already won.

Thursday, March 2, 2017

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