Olongapo SubicBay BatangGapo Newscenter

Wednesday, July 26, 2006

Court forces American to give sample of blood

By Ferdinand Fabella - Manila Standard

THE Makati City Regional Trial Court yesterday compelled US marine Lance Cpl. Daniel Smith, the principal accused in the Subic rape case, to submit blood samples for DNA analysis.

In open court, Smith was ordered to let two representatives from the National Police-Crime Laboratory fill a 5-cc vial of blood from his right arm. The sample was sent immediately to Camp Crame for DNA testing.

The test will determine if the male DNA profile earlier found on complainant Nicole’s underwear is that of Smith’s, proving that he had sex with the 22-year-old Filipina on Nov. 1, 2005, inside a van in the Subic Bay Freeport Zone.

The prosecution contends that Smith raped Nicole in the back of the van while his coaccused—Staff Sgt. Chad Carpentier and Lance Cpls. Dominic Duplantis and Keith Silkwood—cheered him on.

The four US servicemen deny the charge, and say Smith had consensual sex with the complainant.

In a 12-page order, Judge Benjamin Pozon allowed the taking of a blood sample only from Smith, rejecting as “a useless exercise” the prosecution’s motion to have the other three accused tested as well.

Pozon also turned down the argument of Smith’s lawyer, Benjamin Formoso, that the court should first ensure that the DNA analysis conducted on Nicole’s underwear and the used condom was error-free.

Up to the last minute, Formoso tried to prevent the court from implementing its order, citing his motion for reconsideration.

Pozon told the lawyer to go directly to the Court of Appeals to appeal his decision.

In his July 20 testimony, Chief Insp. Francisco Supe Jr. of the National Police-Crime Lab’s Forensic DNA Analysis Section testified that the analysis on the underwear showed positive female and male DNA profiles.

The female DNA profile matched Nicole’s, but the condom had only female DNA profile.

At the continuation of the trial yesterday, the prosecution presented a clinical toxicologist, Dr. Kenneth Go, to prove that Nicole was too drunk to resist a sexual attack.

Testifying as an expert witness, the third for the prosecution, Go said the blood alcohol level on Nicole during the night she claimed she was raped had reached an incredibly high 444.9 milligram per deciliter.

Go and a team of seven other toxicologists analyzed the alcoholic content of the various alcoholic drinks Nicole had drunk at the Neptune Club before the alleged rape.

Based on the testimony of the club’s bartender Nicole had ingested 60 ml of alcohol that night or more than her body mass could tolerate, Go said.

He agreed with the prosecution’s observation that at that stage of intoxication, Nicole “did not have the capacity to resist an attack and [was] unable to sense impending danger, defend herself, and make sound decision[s] in response to the danger.”

As her cognitive function had been impaired, Go said, the complainant would not have been able to give any consent for a sexual intercourse due to a “serious judgment disorder.”

He said that in this state, Nicole’s inability to remember all the important details of that night was understandable.

In her testimony on July 6, Nicole told the court she saw Smith on top of her and kissing and handling her breasts, but she could not fend off the attack as she was too drunk.


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