Forensic evidence backs Tokhang survivor's claim of 'merciless' execution

MANILA, Philippines – The first case against the government’s drug war now has forensic analysis backing the eyewitness account of Efren Morillo, who survived a Tokhang operation that killed 4 in Payatas, Quezon City in 2016.

In the complaint-affidavit Morillo submitted to the Office of the Ombudsman last March, he said the policemen "mercilessly shot" him. None of his 4 companions who were with him resisted arrest, Morillo said. Represented by the Center for International Law (CenterLaw), he filed charges of murder, frustrated murder, robbery, and two counts of violation of domicile on behalf of the families of the other victims.

The Nobel Peace Prize winning organization Physicians for Human Rights (PHR) concluded that Efren Morillo’s account “was consistent with the available evidence.” 

In his account, Morillo said that on August 21, 2016, policemen from Quezon City Police Station-6 arrived at the residence of a scavenger named Marcelo Daa Jr, a friend of his. The police claimed they were dispatched to conduct a Tokhang operation.  

Morillo, a resident of Montalban, Rizal, was visiting Daa, who was home with 3 other young men – Jessie Cule, Anthony Comendo, and Rhaffy Gabo – all neighbors from Payatas Village.

The police claimed all 5 men drew weapons on the police, forcing them to retaliate. Daa, Comendo, Cule, and Gabo were reported to have been killed on the scene.

Morillo said he had been searched, cuffed, and threatened before he was shot in the chest. He claimed to have witnessed the execution of his friend Marcelo. He told Rappler that he heard PO3 Allan Formilleza, the policeman he accused of shooting him, order the tampering of evidence. 

"The policeman who shot me said, 'You know what to do. Call the SOCO. Leave evidence for them. Say they all fought back.'"

Morillo played dead. He escaped with a single gunshot wound after jumping into a ravine. Police charged him the same day with direct assault. 

‘Consistent’ with witness testimony

PHR, a global non-profit organization, performed forensic analysis at the request of CenterLaw, on evidence secured by police.

PHR shared the Nobel Peace Prize in 1997 for critical research on the prevalence and medical consequences of landmine injuries. In the past decade, PHR had provided evidence for international tribunals, as well as criminal investigations into torture and extrajudicial executions in countries like Colombia, Honduras, Libya, Mexico, Peru, and Sierra Leone.  

Dr Homer Venters, PHR's director for programs, sent the final report on the Payatas incident to CenterLaw on November 8, 2017. Venters has conducted forensic assessments of more than a hundred survivors of torture and persons injured during interactions with security forces. His work also involves training health care personnel on assessing and documenting injuries relating to human rights abuses.  

Venters compared autopsy findings as well as medical records to eyewitness testimony, including Morillo's claim that they were shot “while kneeling, sitting, or otherwise not posing any threat or resistance.” 

“Based on the available data,” wrote Venters, “I find that the account of Mr Efren [Morillo] is consistent with the available evidence and that there was a lack of evidence to support the accounts of police officers that Mr Morillo or the four men who died were shot and killed in a gunfight.” 

‘No forensic value’

A second, independent analysis was prepared by Dr Nizam Peerwani, an expert forensic consultant for PHR and a fellow of the American Academy for Forensic Sciences. He reviewed autopsy reports, death certificates, paraffin tests, the crime scene diagram, eyewitness accounts, as well as position papers and counter-affidavits of the police.

Peerwani concluded that the QCPD “failed to provide empirical evidence to substantiate their allegations that the four victims were shot when they drew their weapons on the police.”

Peerwani, who also serves as the chief medical examiner for 4 counties in Texas, is a pathologist with 35 years of experience performing thousands of forensic examinations, many of them involving injuries sustained by firearms. He has investigated wrongful deaths and genocides in various countries, and has testified at the War Crimes Tribunal for charges of genocide in Rwanda.

His findings on the killings in Payatas include the opinion that the positive paraffin test performed by the PNP Crime Lab “has no forensic value.”

Paraffin tests, he added, “is one of the crudest methods” to detect gunshot residue and can lead to false accusations.

The extensive PHR report pointed out mistakes in SOCO protocols, including the “highly unusual” failure to perfom “comprehensive postmortem toxicology” on the bodies, “especially since the encounter between the operatives [of] Batasan Police and the [Daa] family was an alleged ‘drug raid.’”

Peerwani also noted how police examiners failed to offer descriptions of the entry gunshot wounds, gunpowder tattooing, or whether muzzle imprints were present – “Hence the range, or the distance from where the victims of shot cannot be predicted.”

Peerwani’s findings listed the trajectories of many of the bullets as downward. Rhaffy Gabo, according to Peerwani’s report, was shot twice in the back. 

Dr Peerwani concurred with Dr Venters. “It is my opinion that the autopsy findings support the eye witness narrative provided.”

Protection order

On January 26, five months after he was shot, Efren Morillo and the relatives of the deceased filed the first petition against the government’s Operation Tokhang. CenterLaw, on his behalf, asked the Supreme Court to issue a writ of amparo.

The writ, as defined by the High Court, is a remedy “available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity." The writ covers incidents of extralegal killings, enforced disappearances, or threats. 

It was the first writ of amparo granted under the administration of President Rodrigo Duterte, and covered Morillo, his family, and the families of the 4 dead men. 

The Court of Appeals later made the protection order permanent. The CA ruled that all 4 policemen present in the August 21 operation, as well as their commanders – PNP Chief Ronald de la Rosa, QCPD Director Guillermo Eleazar, and Station 6 Commander Lito Patay – were prohibited from entering within a one-kilometer radius of the petitioners.

Formilleza, Garcia, Aggarao, and Navisaga were transferred out of the Quezon City Police District. The QCPD later filed a case against Formilleza for the murder of a Payatas security guard

‘Baloney and a complete lies’

The case against Morillo for direct assault is being heard at Branch 42 of the Metropolitan Trial Court in Quezon City.

In a joint verified affidavit sworn on September 14, 2017, police claimed that witness testimony “was baloney and a complete lies.”  

Witnesses earlier said that police killed one of the drug suspects, Jessie Cule, while he was kneeling and begging for his life.

The police said that affidavits from family members present at the incident were inaccurate, and were based on Morillo’s “cinematic, thespian, histrionic, dramaturgical interlocking script of narration of events with the clear intent of alibis of his crime committed.” 

Morillo filed administrative charges for grave misconduct, as well as criminal charges of frustrated murder, murder, robbery, and planting of drugs and firearms before the Office of the Ombudsman against Garcia, Formilleza, Aggarao, and Navisaga.

The case is undergoing preliminary investigation. – Rappler.com

(Editor's note: Portions of this story were excerpted from Rappler's Impunity Series. To see our investigation on the case of Efren Morillo, read The Fifth Man, the third of Rappler's investigative reports on the drug war conducted in Quezon City.)