[ANALYSIS] Duterte impeachment trial Day 18: The trial still needs more material witnesses to show, not just lawyers who tell

“You will also agree with me na kapag paiba-iba ang rason, maaaring nagsisinungaling lang or talaga namang ito ay isa lamang scam?”

These words were stricken from the record, but as presiding officer Chiz Escudero and senator-judge Alan Peter Cayetano noted, they had secured a life of their own and could influence the judgment of the public at large.

Wrapping up her direct examination of hostile witness Lemuel Ortonio, prosecution lawyer Mae Divinagracia minced no words to declare what she believed that his boss, Vice President Sara Duterte—having been the one who asked for the confidential funds, planned the confidential operations, signed the liquidation reports, and signed the OVP’s replies to COA’s memos and notices of allowances and suspension—was on top of all the alleged misuse of public funds.

She summarized all the loopholes and questionable ways the OVP liquidated P125 million in confidential funds in two words: a “scam” and a series of “pagsisinungaling” when her questions, even already asked and answered according to the defense, faced an all-too-familiar excuse of having no personal knowledge, having no participation, and all that jazz.

She subsequently called Duterte the “architect and mastermind” of it all.

After Escudero, Cayetano, and defense lawyer Kristine Ferrer called her attention, Divinagracia apologized, but stood by her conclusion.

“We apologize if sometimes we get carried away by our zeal and our passion,” Divinagracia said in the hearing. “But we at the prosecution, we just want to call a spade a spade.”

It was not the first time a prosecution lawyer used the word "scam." Lorna Kapunan used the same word with gusto in the first weeks of the trial, and Amando Virgil Ligutan only last Monday.

In the early weeks of the trial, Escudero, at the behest of the defense panel, censured lead prosecutor Rep. Gerville Luistro and Rep. Leila de Lima, a former Justice secretary, for their tendency to editorialize while presenting their witness in court, to make conclusions ahead of a witness testimony.

Divinagracia's questions

Divinagracia raised a strong set of questions to crack open a hostile witness, the way her older colleague Ligutan examined another hostile witness Gina Acosta, the former special disbursing officer of the OVP, for the same liquidation issues. Their direct examinations were not in vain.

In introducing Ortonio, Divinagracia managed to finish an editorial piece, or a “conclusion” of her case, as described by Ferrer, because Ferrer was too slow to object.

Divinagracia scored several points, in fact. 

For her direct examination, she must have spent so many nights perusing all the OVP and COA documents to zero in on the point that Duterte’s footprints were all over the place. On that aspect, no one could probably say that youth was wasted on the young.

Her direct examination of the hostile witness managed to provide the public with an overview of all the circumstances surrounding the controversial confidential funds: who asked for it, who ordered who would receive it, and who would distribute it.

The bucks stopped at Duterte—taken from the famous phrase popularized by former US president Harry Truman, which means a leader must accept ultimate responsibility for their decisions and refuse to pass the blame to anyone else.

In this case, Divinagracia showed, or at least tried to show, that Duterte must not just take responsibility or pass the blame.

The VP was part of the blame, though Divinagracia didn’t say it in so many words.

“Lahat ng ito ay alam, nalalaman ng Vice President,” she said. To say otherwise is to lie.

Feeling short of the witness’ responses, Divinagracia said it herself: “It was a scam.” 

Divinagracia completed her law studies at the Ateneo de Manila in 2007.

Ironically, she was once a counsel of the late DPWH undersecretary Cathy Cabral, a student-activist-turned controversial DPWH planning officer accused of “giving” DPWH projects to selected lawmakers.

Given probably more years, Divinagracia would perfect the art of direct examination.

Like her scathing words, she looked all set for the camera. She was badass—cool, pretty, properly dressed, not overdressed.

After her direct examination, Cayetano reminded both the prosecution and the defense to choose their words carefully during the trial.

The words of Luistro, de Lima, Ligutan, and Divinagracia reminded us of a book titled “Rush to Judgment,” a 1966 best-selling book by American lawyer Mark Lane.

The book strongly criticized the findings and investigative methods, and the performative performances of the Warren Commission regarding the assassination of then-US president John F. Kennedy in November 1963. It acted as a legal brief attempting to defend Lee Harvey Oswald, whom Lane briefly represented at the request of Oswald's mother.

The book argued that the Warren Commission did not act as an impartial body, but rather worked backward from a predetermined conclusion to prove Oswald's sole guilt and pacify the public. It led so many to believe Oswald was a fall guy.

Material vs hostile witness

We wish that in the next few days, the prosecution would start looking for a material witness, not just a hostile witness.

A material witness is a person who has vital, firsthand knowledge about a crime or case—like Chavit Singson and Clarissa Ocampo in the impeachment trial of former president Joseph Estrada.

A hostile witness is a person who testifies in court with clear antagonism or contradiction toward the party that called them.

It was Day 18, and we wished the trial wouldn’t be reduced to this legal narrative, though lawyers usually take this in jest: "If the facts are against you, pound the law. If the law is against you, pound the facts. If the facts and the law are against you, pound the table."

In law and in journalism, there is this cardinal rule in telling a story: “Show, don’t tell.” 

At this point, the trial still needs more material witnesses to show, not just lawyers who tell. 

Disclaimer: The views expressed in this article are those of the author and do not reflect the opinions of PhilSTAR L!fe, its parent company and affiliates, or its staff.