CHICAGO (May 11) – Magistrate Judge Esther Salas of the United States District Court of New Jersey in Newark denied Friday (May 8) the issuance of writs of Habeas Corpus ad testificandum, securing the presence and testimony of Cesar Ochoco Mancao II and Glenn G. Dumlao at the extradition trial of their colleague, Michael Ray B. Aquino, who is celebrating his 43rd birthday on Tuesday (May 12th).
However, Judge Salas allowed Aquino’s lawyer, Mark A. Berman, to depose Mancao and Dumlao in the presence of Assistant United States Attorneys.
The three-page order obtained by this reporter also set the extradition hearing of Aquino at 11:30 a.m. on July 1, 2009.
This means that after Mancao is deposed he is set to be returned to the Philippines to start the preliminary investigation of the inclusion of former General-turned Senator Panfilo Lacson and former President Joseph Estrada as alleged conspirators in the murders of publicist Salvador “Bubby” Dacer and Dacer’s driver, Emmanuel Corbito.
Meanwhile, the departure of Dumlao for the Philippines will be in limbo as he has a standing instruction to his lawyer, Felix Q. Vinluan, to file before the U.S. Second Circuit Court of Appeals in New York an appeal, following the denial last month by Judge Thomas C. Platt of the United States District Court of the Eastern District of New York in Central Islip of Dumlao’s amended petition for habeas corpus filed by the wife of former Philippine police officer, seeking his release from detention.
Vinluan told this reporter that Dumlao had instructed him to file an appeal at every turn. Dumlao has a pending separate asylum petition which Judge Platt had taken “no position whether Mr. Dumlao should be allowed to remain in the United States.”
Judge Salas’ order agreed with the U.S. government’s argument that Aquino cannot introduce “inadmissible contradictory evidence that conflicts with the Government’s evidence” during the extradition trial.
And Aquino can only introduce “explanatory evidence (that) explains away or completely obliterates probable cause.”
Salas said she is authorizing Aquino “to secure limited discovery” that will “elicit ‘explanatory’ evidence from both Dumlao and Mancao’s affidavits.”
Salas also cited “several other district courts that have considered recantation testimony to be admissible.”
Judge Salas also noted Aquino’s argument that “he was not a named party in the original Philippines murder prosecution. Indeed, he claims that he was only later added after being implicated by Dumlao in a sworn statement, which was allegedly obtained under physical and mental duress while in Philippine National Police Custody.
“Apparently, following his release from custody, Dumlao executed a second sworn affidavit, which recanted his earlier statement that was given to the Philippine National Police.
“This affidavit explains that his prior sworn statement was obtained through ‘threats, intimidation, and physical force.
“Then, while in custody of the United States government, Dumlao again changed his affidavit. Additionally, Aquino claims that similar threats were made in obtaining Mancao’s statement. Clearly, Dumlao’s continuous recantation of sworn testimony is cause for concern.”
Judge Salas also cited Aquino’s claim that Dumlao’s and Mancao’s testimonies “will explain the circumstances under which his original statement was made, as well as the substance of the statements as they relate to my involvement in the Dacer and Corbito case.
“In fashioning the appropriate remedy, the Court is cognizant of making sure that Aquino is afforded his right to secure legitimate and truthful explanatory evidence. At the same time this Court seeks to alleviate the Government’s concern about the potential for the future extradition hearing to turn into a trial,” according to the order.