Kaufman’s main defense: No direct link from Duterte to the dead bodies

THE HAGUE, Netherlands – There is no direct link from the “stuff that came out of Rodrigo Duterte’s mouth and the deaths pertinent to the case.”

This was lead defense counsel Nicholas Kaufman’s main point when he presented his arguments on Day 3 of the confirmation of charges hearing on Thursday, February 26.

Providing the nexus is critical for a case like this in the International Criminal Court, and the prosecution, during their turn, provided a pyramid of how Duterte’s words, lists, and policies resulted in the killings of people from the 78 victims included in their charges.

“But the prosecution cannot show such a causal link. They’ve never been able to do that. They show you a lovely pyramid,” said Kaufman.

One of the specific examples provided by the prosecution on Day 2 was how Duterte threatened to kill Albuera, Leyte mayor Rolando Espinosa, put him on his narco-list, and then he was killed and marked as “neutralized.”

“The number of individuals on this so-called kill list, the very list on which the prosecution relies to show the knowledge that death would ensue, is 4,817. Those who are actually neutralized dwarfs in comparison and stands at 248. So, assuming that ‘neutralized’ actually means killed, which it does not, then there is no virtual certainty attributable to Rodrigo Duterte that death would ensue from this kill list. Rather, a 5% chance,” said Kaufman.

For the prosecution, they were able to prove a critical element, which is that Duterte made an “essential contribution” to the crimes, such as providing logistical support (the giving out of guns) and offering financial rewards.

At this stage, it’s still a lower standard of “substantial grounds to believe” to move to trial.

Both sides claim win on Round 3

For former Duterte Cabinet members, Kaufman’s presentation “shattered” the case.

“The prosecution theory has been shattered to pieces because the very testimonial evidence and the documentary evidence presented by the prosecution [have] been thoroughly rebutted,” said Panelo.

Kaufman also hammered on the fact that in the speeches wherein Duterte said to kill, he would also say to just pull out their gun in self-defense. For Kaufman, these kinds of speeches exonerate Duterte. Kaufman also cited later circulars by the Duterte government that actually instructed police to follow due process. Rappler has earlier reported on these circulars that seemed to try to cover the legal loopholes of Senator Ronald “Bato” dela Rosa’s original Oplan TokHang memorandum or police circular No. 16-2016.

The victims’ lawyers, meanwhile, were not bothered by Kaufman’s presentation, saying that it was a weak defense.

“That’s a weak argument,” said human rights lawyer Neri Colmenares. While Kaufman said there had been no proof of a “meeting of the minds” between co-perpetrators, Colmenares said such a literal meeting was not needed.

“I don’t think there’s any evidentiary requirement that they should meet together to prove it. President Duterte, of course, devised a common plan. He ordered it, but he just needs to talk to Bato, [former justice secretary Vitaliano] Aguirre, and say: ‘Look. We do this, right?’ ‘Okay. Yes, sir,’ they agreed,” said Colmenares.

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Kaufman insisted there had been no proof of “automatic compliance” down the food chain, or the prosecution’s pyramid. There’s one insider witness privy to Oplan TokHang, but Kaufman discredited that witness also, saying that the kills the witness made were “on the whim” of a barangay chair.

At one point of the session, Kaufman said there could be no proof of Duterte ordering or abetting the crimes because the prosecution did not formally include command responsibility in the charges. Kaufman said the judges should not let the prosecution requalify its charges.

“If you do — and I believe you should not, I respectfully submit — you should order the prosecution to resubmit its document containing the charges and its pre-confirmation brief, and to release Mr. Duterte in the interim,” said Kaufman.

Kaufman later told reporters that it was not a formal second request for interim release. Every year, the judges have to review if Duterte’s detention is still necessary. The later part of Day 4 will be devoted to the detention review.

‘I don’t make light of victims’ grief’

Kaufman opened his session by saying that whatever he said that day was in no disrespect to victims.

“The defense does not disrespect the soul of any deceased person, nor does it make light of the loss of life. Any criticism made by us today will not be leveled at the loved ones of those, such as the tearful relative whom I saw in the gallery here on Tuesday,” said Kaufman.

The lawyer said that because “in every case of this court, the victims [are] central.”

“Of course, I felt for the poor lady at the gallery yesterday who was crying, because I’m a human being, we’re all human beings, and I don’t make light of her grief. However, I have a job to do, and that is to defend someone who I believe has been wrongly charged,” said Kaufman.

But Llore Pasco, who lost her two sons in the drug war, said she still felt diminished and belittled.

“Nakikita po namin na talagang minaliit po ang aming pagkatao. Kumbaga, parang ni walang halaga ‘yung aming mga mahal sa buhay. Sinasabi na numero lang, parang hindi binigyan ng halaga ‘yung aming paghihirap, ‘yung aming pagdurusa,” said Pasco.

(We saw that our humanity was belittled. It was as if our loved ones meant nothing. That they were just a number, like our sufferings and difficulties have no meaning.)

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– Rappler.com