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Defense won't cross-examine 'surprise' witness in massacre case


The defense panel in the Maguidnanao massacre case on Thursday stood firm in refusing to cross-examine the latest witness who tagged principal accused Andal Ampatuan Jr. in the carnage. On Wednesday, defense lawyers had already asked for the deferment of their cross- examination of "surprise witness" Amil Abdul Satar Maliwawaw to Thursday, saying they had to prepare for it. Maliwawaw was a farmer living not too far away from the checkpoint where the 57 victims were flagged down in the morning of Nov. 23, 2009 by armed men believed to working for the Ampatuan clan. On Thursday, however, defense lawyers changed their minds and all agreed to no longer cross-examine the farmer-witness. "We refuse to cross-examine the witness... His name is not listed in [the] pre-trial order or has not been identified at any point in time," lawyer Sigfrid Fortun told a Quezon City court on Thursday. Fortun said he has observed the prosecution's "pattern about the presentation of witnesses" in which witnesses and pieces of evidence not previously identified in a pre-trial order are suddenly presented in court. The defense lawyer cited previous court rulings that were "very specific that those not listed on the pre-trial order or any amended pre-trial order should not be presented unless they show good cause." Fortun said that according to a Supreme Court decision in April, a party can use "good cause" as an excuse "if they [witnesses] were previously known and identified but whose whereabouts could not be done at the time the pre-trial was made." "None of the witnesses presented lately have been justfified for good cause as so far as the presentation of witness is concerned," he added. Interviewed after Thursday's proceedings, Fortun insisted the prosecution should have informed them about the next witness' identity at least a day before testifying. "The prosecution should not surprise us," he said. Fortun said that based on the agreements reached between the defense and the old panel of the prosecution last year, a witness' identity should be revealed at least two days before he or she takes the witness stand. The other party should likewise be furnished a copy of any document planned to be presented as evidence in court three days earlier. The prosecution, however, belied Fortun's accusations, saying they have consistently presented witnesses previously identified in the Sept. 7, 2010 pre-trial order, like witness Esmael Amil Enog identified as "Witness No. 18" and Corporal Zaldy Raymundo as "Witness No. 13." While Fortun was still further elaborating on why they refuse to cross examine the witness, Assistant State Prosecutor Nestor Lazaro then asked Judge Jocelyn Solis-Reyes if Maliwawaw can now leave the witness stand since the defense "has already waived" its right to cross- examine him. Lazaro's statement irked Fortun, who fired back: "That gentleman [Lazaro] keeps butting in." Private prosecutor Nena Santos, legal counsel for Gov. Esmael Mangudadatu, had earlier pointed out that deferring a witness' cross-examination does not only delay proceedings but also threatens to render a testimony invaluable. Mangudadatu lost his wife and two sisters in the massacre. Santos said under court procedures, a witness' testimony could only be admitted in court after it has undergone scrutiny of the other party through a cross-examination. However, a direct testimony not subjected under cross-examination can still be appreciated by the court so long as the defense agrees to waive its right to cross examine. A source from the prosecution who spoke on condition of anonymity, however, remained confident that Maliwawaw's testimony would not go to waste despite the defense's refusal to cross-examine the witness. "Nag-refuse nga sila. Pero technically, that is already waiving their right. So para sa amin, admitted na iyon in court. That's already gospel truth, hindi nga lang na-test," the source said shortly after the hearing. — RSJ, GMA News

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