[OPINION] Part 2: Distorting probable cause in Ortega case

In the first part of this article on the Gerry Ortega decision, where a division of the Court of Appeals absolved former governor Joel Reyes of complicity in the murder of the environmental and anti-corruption crusader, we reflected on how the concept of probable cause, a good concept in a system characterized by due process, may have been distorted by the majority.

Admittedly and as with probable cause, "grave abuse of discretion amounting to lack or excess of jurisdiction" is a struggle to understand.

In the case of Reyes, the officer in question would be the judge – and by extension, the investigating prosecutors. The findings of the prosecutor post-investigation represent the State's first look at a criminal complaint.

Whether an offense is successfully resolved by trial depends on the professional performance of the Philippine prosecutorial corps from this very start. Along with them, the judges to whom the burden of judicial probable cause and final resolution rests, are bound by the same professionalism.

We are fully aware that some may fail this high standard, deliberately or with gross neglect. People are vulnerable to laziness, carelessness, even full-blown malice. Hence the Rule 65 "grave abuse of discretion" certiorari, was constitutionally elevated as a remedy against actions of government officials in any branch breaching law or legal standard.

Granted, a certiorari challenge is a higher bar to clear than a regular appeal; one does not allege here a mere error of judgment, but something worse.

It is even harder in challenging probable cause findings, as factual assessments of an officer trusted with discretion tend to be the central issue, errors in fact tend to be considered as mere errors of judgment, except when bias or inexcusable negligence is clearly involved. The SC also tends to respect preliminary investigation findings absent the clear showing we stressed above.

If and only if the standard of evidence for preliminary investigation should be the same scouring demanded during trial, then there would have been basis to overturn the probable cause finding for breach of legal standard.

But as the dissents have argued, and as other cases have shown, precisely because there is no cross-examination requirement yet during preliminary investigation, and no opportunity for scouring by the holy trinity of prosecutor, defense, and judge – all that is demanded for probable cause is a "reasonable ground to believe that the accused is guilty of the offense" (People v. Inting). The trial-level certainty requiring the technical application of the Rules of Court that the Decision implies is not necessary.

All that is left is the evidence as is, and the very findings of the majority militate in favor of probable cause. Equivocality and circumstantiality require holy-trinity scouring to reveal their true intent – it cannot be accomplished by an investigating prosecutor or arrest-warrant judge in a non-confrontational setting just sifting through the records.

The principle of in dubio pro reo (when it doubt, rule for the accused) works only at the trial stage, once the questions of law and fact are being scoured, once guilt is in question – and not before, when conviction is not yet being considered. That is the process lawyers are sworn to uphold.

It is true that, in criminal proceedings, as defense counsel, we are sworn to push hard, even painfully, in fighting for our client-accused. Every angle, every loophole, every chance we get. That is the essence of the trial holy trinity: the State prosecutes, defense counsel counters, the judge rules, then we hope that truth and justice reign "though the heavens may fall."

But as with Veloso, in this dynamic, due process cannot be held hostage – neither by the accused nor the State.

Putting probable cause on trial

The majority decision describes its disposition of the case as a "second chance afforded… by God, or a lucky 3-point play."

Given how trite it sounds, even from a dispassionate professional perspective, it still feels more like Pilate washing his hands off the matter. And we know how that turned out. Too much pain has been borne in the probable cause debate, in either direction, that probable cause cannot be dismissed just as tritely.

When this case reaches the SC, we can only pray that the Justices see what is at stake here – how it may inform preliminary investigations and arrest warrant issuances. There is the chance, as we have seen in the review above, how too much may be demanded from probable cause such that due process in a case is strangled in the womb, and the clearly innocent are thrown under the bus.

We hope that the clear standard set forth in Santos-Dio is upheld, that in preliminary investigations, only clear, uncontroverted evidence showing lack of probable cause renders trial a futility.

We pray that the Court takes the opportunity to remind prosecutors and judges of the high trust placed on them in probable cause determinations, and consequently the degree of professionalism expected from them. We pray that they are able to show it always in their product when it is challenged in appellate courts.

We hope that the legal profession does not treat Rule 65 certiorari lightly, like some sort of magic wand that waves prosecutions away, but instead bears in mind the implications of what it asks for.

And we definitely pray that the question of Ortega's death is answered once and for all, to avoid the pain we saw in the Vizconde case. Given all the doubts left behind by Reyes v. RTC, only the scouring of trial and safeguarding of due process can put them to rest. – Rappler.com

Christian Laluna is a graduate of the Ateneo School of Law. He is waiting for the results of the bar examinations by collaborating with Professor La Viña in several projects.