Not sub judice: Tolosa hopes impeach court would hear entire clip

MANILA, Philippines — Counsel for the prosecution Benjamin Tolosa Jr. has maintained that his statements during media interviews were not meant to influence the Senate Impeachment Court towards convicting Vice President Sara Duterte, saying it would be good to hear the entire clip to provide context.

Tolosa in an interview on Friday relayed that the Senate Impeachment Court’s order — for him to explain why he should not be cited for sub judice violations — referred to a Sept. 8 press briefing where he supposedly talked about evidence against Duterte being sufficient already.

A copy of the show-cause order noted that Tolosa said presenting additional evidence will be just “cumulative” as they believe the documents are already “enough.”  But the lawyer said mentioning the next sentences after this would have provided context and clarified matters.

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“One of the […] statements was about when we declared why the prosecution decided not to present additional evidence anymore with respect to the article on confidential funds, what we stated there is it’s because we (were) already able to hit our evidentiary targets,” Tolosa told reporters covering the House of Representatives.

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READ: Sub judice rule: Ridon, Tolosa given show-cause orders by impeach court 

“Unfortunately, it ended there, (they did not include) the next statement saying, explaining what I meant about evidentiary targets, explaining this is just internal to us, and we clearly said there that this does not mean we are saying it is enough to reach conviction, because determining that matter, it’s for impeachment court to determine,” he added.

According to Tolosa, another part of his statement which was not included in the show-cause order was his explanation on how presumption of innocence applies to criminal cases, as well as his clarification that for an impeachment court, it is up to senator-judges.

“For example discussing about presumption of innocence, it is also clear that the context of what I was saying was not included, this discussion was just in general about how to apply this rule in criminal case, civil (case), and admin(istrative) cases, and then I also stated there that how to apply this for this case, it’s for the court to determine,” he said.

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“So it’s unfortunate that that happened, because we think that if the court sees the whole context, it would be clear that we did not do any prejudgment, we did not weigh the weight of evidence, the merits of the case, we merely repeated matters as allowed under that exemption of fair and true reporting,” he added.

Last Wednesday, before the Senate Impeachment Court adjourned Day 25 of its trial, Presiding Officer and Senator-judge Francis Escudero announced that they will be issuing show-cause orders to two members of the prosecution team suspected of violating sub judice rules.

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Rule 18 or the judice rule prohibits parties to the case — lawyers from both sides, the respondent, and the senator-judges — from commenting on its merits.

Eventually, it was revealed that the prosecutors hit with the show-cause orders were Tolosa and public prosecutor Bicol Saro party-list Rep. Terry Ridon.

Ridon in a statement early Friday morning said that his remarks during interviews were only intended to explain the impeachment proceedings to the public, and not in any way a move to violate the sub judice rule.

The lawmaker also said that he had filed on Thursday afternoon his reply to the show-cause order issued against him by the impeachment court.

READ: Ridon says trial remarks meant to explain, not influence impeach court 

Tolosa, meanwhile, said during the same interview called for a fair application of the sub judice ruling, saying that Duterte herself violated it when she claimed that senator-judges are all under President Ferdinand Marcos Jr.’s control.

The lawyer explained that Duterte made an official statement that not only appeared to be delving on the merits of the impeachment case, but one that sounded like an attack on the court’s credibility and integrity.

Tolosa was referring to Duterte’s remarks last Sept. 7 where she stated that even if Marcos controls “the senators, prosecutors, judges and police,” she believes that there are lawyers helping her fight and eventually win cases.

READ: Sara Duterte claims Marcos controls Senate, judges, police

According to Tolosa, Duterte does not even have to specify that she was referring to senator-judges in her statement as senators are the ones sitting in the impeachment court, and because she already mentioned impeachment cases as a context.

A more strict implementation of the sub judice rule came after a manifestation from lead counsel for respondent Sheila Sison last August 12, when she questioned counsel for prosecution Amando Virgil Ligutan over a Facebook post where he said that a “principle all lawyers and law students know by heart” is that “misleading questions are not allowed even on cross-examination.”

Sison said Ligutan did not name anyone, but he was clearly referring to counsel for respondent Kristine Ferrer — particularly the exchange between her and another prosecution counsel. Atty. Lorna Kapunan.

Sison was pointing to a tense moment during the cross-examination of state auditor Xylene Mae del Campo, where Kapunan strongly objected to Ferrer’s habit of cutting the witness off before she was even able to provide an answer to the questions.

As she insisted that Ferrer is mistaken in stating that she can throw questions answerable by yes or no only, Kapunan said that “misleading questions are not allowed.” After this, Ferrer responded by saying that “it is allowed.” 

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But Sison said that Ferrer’s “it is allowed” quip was not a reply to Kapunan’s “misleading questions are not allowed” even on cross-examination statement — making Ligutan’s social media post as something done in “bad faith.” /das