International Criminal Court prosecutors and former president Rodrigo Duterte’s lawyer were locked in a tense legal showdown on Friday, the last day of the pre-trial hearing, over whether the three murder charges against the ex-leader must be confirmed to go to trial, as the defense asserts the evidence is weak, not credible, and failed to establish Duterte’s direct link to the alleged killings.

Nicholas Kaufman, Duterte’s lead counsel, argued that the prosecution heavily relied on insider testimonies, most of which were allegedly uncorroborated and driven by personal motives. He also slammed the prosecution for “selective reading of police reports and dubious and tenuous linkage” to Duterte. 

Kaufman disputed claims by prosecution trial lawyer Edward Jeremy earlier this week that police reports were “repeatedly falsified” to legitimize the operations as acts of self-defense or to justify killings of alleged drug suspects during police anti-drug ops. 

“There is zero proof, none, that the only existing contemporaneous documentary evidence is fabricated or unreliable. No proof whatsoever of this supposed falsification in the entire case record,” Kaufman told the judges of the Pre-Trial Chamber I (PTC-I).

“On this point, let us just clarify a basic principle, that a state document, with the appropriate stamps and signatures and what have you, is prima facie reliable, or in other words, it carries a presumption of administrative regularity,” he added. 

Prosecution: It’s no surprise

Prosecution senior trial lawyer Julian Nicholls, however, contended that “it's not a surprise that the police reports don't reflect” the killings, given that the police was then headed by now Senator Bato de la Rosa—one of his co-perpetrators—an appointee closely associated with Duterte as early as his stint in Davao as mayor. 

The defense further argued that the prosecution has no evidence to directly implicate Dutete in the murders of then Albuera mayor Rolando  Espinosa and Ozamiz mayor Reynaldo Parojinog, who were considered “high-value targets” (HVT). 

Jeremy on Tuesday presented a copy of the so-called “PRRD list,” or a spreadsheet containing the names and the photos of the individuals deemed HVT allegedly involved in illegal drug dealings.

The alleged drug dealers were categorized into five levels, with HVTs falling under Level 3, along with senior government officials, members and executives of the judiciary, and members of law enforcement groups. 

The prosecution charged Duterte, 80, with three counts of murder for the killings of 78 individuals, including six children, allegedly suspected of drug dealings from 2013 to 2018, spanning his tenure as Davao mayor and as president. 

The HVTs, who fall under count two, were killed between 2016 and 2017 across the Philippines, while Duterte was in office as president.

Espinosa was shot dead inside his jail cell, allegedly after firing at police officers, in November 2016, while Parojinog and several members of his family were killed at their compound in a predawn drug raid in July 2017.

“The prosecution's case is largely premised on a witness who claimed to have heard but admitted not to have seen anything. Thus, there is nothing in the prosecution's evidence to contradict the alternative theory proposed for this incident, which is that there was a firefight between the victims and the officers in a police station, later a sub-provincial jail,” Kaufman said, referring to Espinosa’s killing.

In fact, he claimed, the evidence by the prosecution clears Duterte of responsibility for Espinosa’s killing, pointing to a statement cited by the prosecution that Duterte gave Espinosa a 24-hour ultimatum to surrender. 

As for Parojinog, he argued that the prosecution “rests exclusively” on a witness who is “wholly unable to provide complete or reliable testimony.” 

“Official investigative materials also indicate that officers approached the premises, announced the execution of the warrant, and were met with gunfire that struck a patrol vehicle and injured an officer, prompting a return of fire,” Kaufman told the court. 

HVT not a kill code 

Kaufman also contended that the HVT is not a “code for an instruction to kill or a witch hunt.” Rather, he said, the list of individuals considered as HVT was used as a “prioritization tool” in anti-drug operations applied across the country and “does not imply selection for murder.” 

“Many HVT operations in fact resulted in arrest or surrender, albeit some resulted in fatal encounters,” he pointed out.

Aside from this, Kaufman also contradicted the charges brought by the prosecution, which alleged that there were children or minors, aside from Kian de los Santos, who died during anti-narcotics operations. 

The defense pointed to the prosecutors’ alleged failure to provide the court with birth certificates and corroborative evidence that would substantiate its assertions that six children of the 78 individuals they identified as drug war victims were killed by the police. 

What minors?

“And, by the way, on the subject of the killing of children, of course it ticks the right boxes for the prosecution insofar as it pulls the heartstrings, but apart from Kian de los Santos, the prosecution has not, despite its emphasis on children, presented to this chamber during these proceedings any evidence that even one victim, apart from Kean, in its incidents was a minor,” he stressed.

De los Santos was only 17 years old when he was shot dead after allegedly fighting back against police during an anti-drug operation in Caloocan in August 2017.

“While incidents presented as involving minors are indeed grave, Article 61 remarks proof, not immersion. It is for the prosecution to prove that the children were involved in these incidents, and not for the defence, once again, to prove a negative. Now, this evidentiary deficit extends even further,” he continued. 

Furthermore, Kaufman asserted that the prosecution, in several incidents under count two, failed to present compelling 

evidence that Duterte personally ordered or carried out the killings, nor that he and other top officials formally agreed on a joint plan to commit those acts.

Evidence vs Duterte not established

“We see absolutely no evidence whatsoever of any attribution to Mr. Duterte on the granular level, nor do we see any evidence of a mutually agreed course of conduct on the upper hierarchical level of government involving Mr. Duterte and his alleged so-called co-perpetrators,” he said. 

The prosecution alleged that Duterte appointed his co-perpetrators from Davao to senior positions in government and police when he assumed the presidency in 2016.

“In these high-level positions, Mr. Duterte and his co-perpetrators had authority over thousands of state personnel, including those who formed the national network that the co-perpetrators used to carry out the charged crimes,” Jeremy told the court earlier this week.

The nationwide extrajudicial killings were allegedly modeled after the “Davao model,” which provides reward payments for perpetrators in exchange for neutralizing alleged drug dealers. 

Jeremy told the court that Duterte expanded and replicated the scheme that originated during his time as Davao mayor, when he won as president. 

The budget, he said, was not sourced from PNP funding but was provided by Duterte himself, as evident in his several public speeches. 

Nicholls, on the other hand, told the court that it is high time to grant Duterte’s request to be held accountable for the massive killings committed by the police in relation to his drug war.

“The facts cannot be denied. He ran a death squad. He promised to kill thousands, and he did,” Nicholls told the court on Friday. 

“He wants to be remembered as the man with the gun. It is time for him to take responsibility for the crimes he brags about.”

Nicholls asserted that Duterte must answer for what's dead as “justice demands it.” 

“And for purposes of confirmation, the evidence demands it. We have proven it to the level for this to be bound over for trial. We ask you to do that, your honors,” Nicholls told the court in his closing remarks.